We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 727 airplanes. This AD was prompted by certain mandated programs intended to support the airplane reaching its limit of validity of the engineering data that support the established structural maintenance program. This AD requires an inspection for cracks in the main wheel well pressure floor and a preventive modification or permanent repair, as applicable. We are issuing this AD to prevent cracking in the main wheel well pressure floor, which could result in reduced structural integrity of the airplane, and decompression of the cabin.

DATES:

This AD is effective May 1, 2014.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 14, 1992 (57 FR 53247, November 9, 1992).

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-0545; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 727 airplanes. The NPRM published in the Federal Register on July 18, 2013 (78 FR 42900). The NPRM was prompted by certain mandated programs intended to support the airplane reaching its limit of validity of the engineering data that support the established structural maintenance program. The NPRM proposed to require an inspection for cracks in the main wheel well pressure floor and a preventive modification or permanent repair, as applicable. We are issuing this AD to prevent cracking in the main wheel well pressure floor, which could result in reduced structural integrity of the airplane, and decompression of the cabin.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (78 FR 42900, July 18, 2013) and the FAA's response to each comment.

Request To Clarify the Reason for Issuing the NPRM (78 FR 42900, July 18, 2013)

Boeing requested that we clarify a statement in the “Discussion” section of the preamble of the NPRM (78 FR 42900, July 18, 2013). Boeing stated that the “Discussion” section in the preamble of the NPRM did not explain that the reason for proposing the NPRM was to complete one of the recommendations contained in Boeing's 727 Service Action Requirement Program. Boeing noted that in the NPRM's “Discussion” section references were made to “certain programs” and “previously established program,” but should have specifically referred to the Boeing 727 Service Action Requirement Program. Boeing also noted that the service information referenced in the NPRM is related to the Boeing 727 Service Action Requirement Program.

We agree that the references to “certain programs” and “previously established program” were both referring to the Boeing 727 Service Action Requirement Program, and that the service information referenced in the NPRM (78 FR 42900, July 18, 2013) is related to that program. However, the portion of the NPRM's “Discussion” section that Boeing referred to is not carried over into this final rule; therefore, no change to this final rule is necessary in this regard.

Request To Correct Statements Regarding Other Relevant Rulemaking

Boeing requested that we correct the statements regarding the AD requirements of the other relevant rulemaking mentioned in the preamble of the NPRM (78 FR 42900, July 18, 2013). Boeing stated that the discussion regarding AD 92-19-11, Amendment 39-8369 (57 FR 53247, November 9, 1992), incorrectly stated that AD 92-19-11 required the preventative modification or permanent repair for airplanes having line numbers 001 through 1432. Boeing noted that AD 92-19-11 did not require the preventative modification, but provided the option to terminate the repetitive inspections if the preventative modification or permanent repair was installed on airplanes with line numbers 001 through 1432. Boeing also stated that, in a different rulemaking action, the “Other Relevant Rulemaking” section provided a clearer description of the actions required by AD 90-06-09, Amendment 39-6488 (55 FR 8370, March 7, 1990), and AD 92-19-11, and requested that the NPRM be revised to include the language from the other rulemaking action.

We agree that the NPRM (78 FR 42900, July 18, 2013) incorrectly stated that AD 92-19-11, Amendment 39-8369 (57 FR 53247, November 9, 1992), requires the preventive modification or permanent repair. However, in its comment, Boeing stated that the option to terminate the repetitive inspections provided in AD 92-19-11 was for airplanes having line numbers 001 through 1432, which is not correct. AD 92-19-11 provides the option to terminate the repetitive inspection requirements for all Model 727 airplanes once the permanent repair or preventive modification is installed.

We are issuing this final rule to require the permanent repair or modification for Model 727 airplanes with line positions 1433 through 1832 inclusive. AD 90-06-09, Amendment 39-6488 (55 FR 8370, March 7, 1990), only requires the permanent repair or terminating modification, in accordance with Boeing Service Bulletin 727-53-0149, Revision 2, dated March 20, 1981, which only applies to airplanes having line numbers 001 through 1432 inclusive. AD 92-19-11, Amendment 39-8369 (57 FR 53247, November 9, 1992), does not require the permanent repair or terminating modification, but provides it as an option.

The “Other Relevant Rulemaking” section of the NPRM (78 FR 42900, July 18, 2013) is not carried over into this final rule; therefore, no change to this final rule is necessary in this regard.

Conclusion

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (78 FR 42900, July 18, 2013) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 42900, July 18, 2013).

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD applies to The Boeing Company Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, certificated in any category, having line position 1433 through 1832 inclusive, identified as Group 2 airplanes in Boeing Service Bulletin 727-53-0149, Revision 4, dated June 27, 1991.

(d) Subject

Air Transport Association (ATA) of America Code 53, Fuselage.

(e) Unsafe Condition

This AD was prompted by certain mandated programs intended to support the airplane reaching its limit of validity of the engineering data that support the established structural maintenance program. We are issuing this AD to prevent cracking in the main wheel well pressure floor, which could result in reduced structural integrity of the airplane, and decompression of the cabin.

(f) Compliance

Comply with this AD within the compliance times specified, unless already done.

(g) Definition of Detailed Inspection

For the purposes of this AD, a detailed inspection is an intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirrors, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.

(h) Inspection and Repair/Modification

At the later of the times specified in paragraphs (h)(1) and (h)(2) of this AD: Do a one-time detailed, high frequency eddy current (HFEC), or dye penetrant inspection for cracks in the main wheel well pressure floor at body stations 930, 940, and 950, between left and right buttock line 50 and the side of the airplane body, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 727-53-0149, Revision 4, dated June 27, 1991.

(1) Prior to the accumulation of 60,000 total flight cycles; or

(2) Within 2,500 flight cycles or 2 years after the effective date of this AD, whichever occurs first.

Note 1 to paragraph (h) of this AD:

If a detailed inspection is performed, stripping the paint will help ensure accurate inspection results.

(i) Preventive Modification

If no cracks are found during the inspection required by paragraph (h) of this AD: Before further flight, do the preventive modification, in accordance with Part IV of the Accomplishment Instructions of Boeing Service Bulletin 727-53-0149, Revision 4, dated June 27, 1991. Doing the preventive modification terminates the repetitive inspections required by paragraph (d) of AD 92-19-11, Amendment 39-8369 (57 FR 53247, November 9, 1992).

(j) Permanent Repair

If any crack is found during the inspection required by paragraph (h) of this AD: Before further flight, do the permanent repair, in accordance with Part III of the Accomplishment Instructions of Boeing Service Bulletin 727-53-0149, Revision 4, dated June 27, 1991. Doing the permanent repair terminates the repetitive inspections required by paragraph (d) of AD 92-19-11, Amendment 39-8369 (57 FR 53247, November 9, 1992).

(k) Credit for Previous Actions

This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using Boeing Service Bulletin 727-53-0149, Revision 3, dated November 2, 1989, which was incorporated by reference in AD 92-19-11, Amendment 39-8369 (57 FR 53247, November 9, 1992).

(l) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (m) of this AD.

(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

(5) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington 98057-3356. For information on the availability of this material at the FAA, call 425-227-1221.

(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

Pursuant to section 215 of the Federal Power Act, the Federal Energy Regulatory Commission (Commission) approves the following Reliability Standards that were submitted to the Commission for approval by the North American Electric Reliability Corporation, the Commission-certified Electric Reliability Organization: MOD-025-2 (Verification and Data Reporting of Generator Real and Reactive Power Capability and Synchronous Condenser Reactive Power Capability), MOD-026-1 (Verification of Models and Data for Generator Excitation Control System or Plant Volt/Var Control Functions), MOD-027-1(Verification of Models and Data for Turbine/Governor and Load Control or Active Power/Frequency Control Functions), PRC-019-1 (Coordination of Generating Unit or Plant Capabilities, Voltage Regulating Controls, and Protection), and PRC-024-1 (Generator Frequency and Voltage Protective Relay Settings). The generator verification Reliability Standards help ensure that verified data is available for power system planning and operational studies by requiring the verification of generator equipment and capability needed to support Bulk-Power System reliability and promoting the coordination of important protection system settings.

1. Under section 215 of the Federal Power Act (FPA),1 the Commission approves five Reliability Standards that were submitted to the Commission for approval by the North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO): MOD-025-2 (Verification and Data Reporting of Generator Real and Reactive Power Capability and Synchronous Condenser Reactive Power Capability), MOD-026-1 (Verification of Models and Data for Generator Excitation Control System or Plant Volt/Var Control Functions), MOD-027-1 (Verification of Models and Data for Turbine/Governor and Load Control or Active Power/Frequency Control Functions), PRC-019-1 (Coordination of Generating Unit or Plant Capabilities, Voltage Regulating Controls, and Protection), and PRC-024-1 (Generator Frequency and Voltage Protective Relay Settings).

1 16 U.S.C. 824o.

2. The Commission approves the associated implementation plan, violation risk factors and, with one modification, the violation severity levels. The Commission also approves the retirement of Reliability Standards MOD-024-1 and MOD-025-1 immediately prior to the effective date of MOD-025-2.

3. The generator verification Reliability Standards will help ensure that generators remain in operation during specified voltage and frequency excursions; properly coordinate protective relays and generator voltage regulator controls; and enhance the ability of generator models to accurately reflect the generator's capabilities and equipment performance. Reliability Standards MOD-026-1, MOD-027-1, PRC-019-1 and PRC-024-1 are new, whereas Reliability Standard MOD-025-2 consolidates two existing Reliability Standards, MOD-024-1 (Verification of Generator Gross and Net Real Power Capability) and MOD-025-1 (Verification of Generator Gross and Net Reactive Power Capability), into one new Reliability Standard. Portions of Reliability Standards MOD-025-2 and PRC-024-1 respond to directives contained in Order No. 693.2

4. The generator verification Reliability Standards improve the accuracy of model verifications needed to support reliability and enhance the coordination of generator protection systems and voltage regulating system controls. Such improvements should help reduce the risk of generator trips and provide more accurate models for transmission planners and planning coordinators to develop system models and simulations. We also determine that the generator verification Reliability Standards adequately address the Commission's directives regarding Reliability Standard MOD-025-2 and PRC-024-1. Therefore, pursuant to section 215(d) of the FPA, we approve Reliability Standards MOD-025-2, MOD-026-1, MOD-027-1, PRC-019-1 and PRC-024-1.

I. Background

5. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Specifically, the Commission may approve, by rule or order, a proposed Reliability Standard or modification to a Reliability Standard if it determines that the Reliability Standard is just, reasonable, not unduly discriminatory or preferential, and in the public interest.3 Once approved, Reliability Standards may be enforced by the ERO, subject to Commission oversight, or by the Commission independently.4

3 16 U.S.C. 824o(d)(2).

4Id. 824o(e)(3).

6. Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,5 and subsequently certified NERC.6 On March 16, 2007, the Commission issued Order No. 693, approving 83 of the 107 Reliability Standards filed by NERC. Because MOD-024-1 and MOD-025-1, which NERC had included in its filing, involved regional procedures that had not been submitted, the Commission postponed either approving or remanding these standards until NERC submitted additional information. However, the Commission issued three directives in Order No. 693 with respect to MOD-024-1 and MOD-025-1.

7. Reliability Standards MOD-024-1 and MOD-025-1 are “fill-in-the-blank” Reliability Standards that would require regional reliability organizations to develop procedures to verify generator real and reactive power capability, respectively. Regarding MOD-024-1, the Commission directed NERC to clearly define the test conditions and methodologies contained in the Reliability Standard, and also to clarify the time period within which regional reliability organizations must provide generator real power capability verification.7 For MOD-025-1, the Commission directed NERC to clarify that MVAR capability verifications should be made at multiple points over a generator unit's operating range and also directed NERC to clarify the time period within which reactive power capability verifications are to be provided.8 These directives are addressed in Reliability Standard MOD-025-2.

7 Order No. 693, FERC Stats. & Regs. ¶ 31,242 at PP 1310-1311.

8Id. PP 1321-1323.

8. Order No. 693 contained two directives pertaining to Reliability Standard PRC-024-1. First, the Commission stated that NERC should use the Nuclear Regulatory Commission's (NRC) voltage ride through requirements when implementing Reliability Standards to “assure that there is consistency between the Reliability Standards and the NRC requirement that the system is accurately modeled.” 9 Second, the Commission directed NERC to explicitly require generators to be “capable of riding through the same set of Category B and C contingencies, as required by wind generators in Order No. 661, or that those generators that cannot ride through be simulated as tripping.” 10 These directives are addressed in Reliability Standard PRC-024-1.

9Id. P 1787.

10Id.

II. NERC Petition and Proposed Reliability StandardsA. NERC Petition

9. On May 30, 2013, NERC filed its petition seeking approval of Reliability Standards MOD-025-2, MOD-026-1, MOD-027-1, PRC-019-1 and PRC-024-1. NERC states that four of the five Reliability Standards are new, while existing Reliability Standards MOD-024-1 and MOD-025-1 were merged into proposed Reliability Standard MOD-025-2. NERC also seeks approval of the associated implementation plans, violation risk factors and violation severity levels, and retirement of current Reliability Standards MOD-024-1 and MOD-025-1 at midnight of the day immediately prior to the effective date of MOD-025-2. NERC proposes to phase in effective dates in stages over periods ranging from five years (for MOD-025-2, PRC-019-1 and PRC-024-1) to ten years (for MOD-026-1 and MOD-027-1).11 NERC states that “these five proposed Reliability Standards address generator verifications needed to support Bulk-Power System reliability and will ensure that accurate data is verified and made available for planning simulations.” 12

10. NERC explains that Bulk-Power System reliability benefits from “good quality simulation models of power system equipment” and that “model validation ensures the proper performance of the control systems and validates the computer models used for stability analysis.” 13 NERC further states that the proposed Reliability Standards will enhance reliability because the tests performed to obtain model data may reveal latent defects that could cause “inappropriate unit response during system disturbances.” 14 NERC also states that simulating the response of synchronous machines and related control systems in sufficient detail is essential for effective power system planning and operational studies.15 For accurate simulations reflecting actual equipment performance covering a range of disturbances, NERC states that models must not only contain adequate information, they must also correspond to actual field values.16 Finally, NERC asserts that Reliability Standards MOD-025-2 and PRC-024-1 address the directives in Order No. 693 mentioned above.

11. Reliability Standard MOD-025-2 merges two existing Reliability Standards, MOD-024-1 and MOD-25-1, and has the stated purpose of ensuring the accuracy of generator information related to gross and net real and reactive power capability and synchronous condenser reactive power capability that is available for planning models and bulk electric system reliability assessments.17 The Reliability Standard applies to generator owners and transmission owners that own synchronous condensers and has three requirements and two Attachments. Attachment 1, incorporated into Requirements R1.1, R2.1 and R3.1, specifies the periodicity for performing real and reactive power capability verification and the verification specifications for applicable facilities. Attachment 2, which generator owners and transmission owners will use to report to their transmission planners the information described in Attachment 1, is incorporated into Requirements R1.2, R2.2 and R3.2.

17 Reliability Standard MOD-025-2, Section A.3 (Purpose).

12. NERC states that Reliability Standard MOD-025-2 addresses the directives in Order No. 693. Specifically, NERC states: (1) Requirement R1, Part 1.2 specifies that a generator owner must submit Attachment 2 or another form containing the same information to its transmission planner within 90 calendar days of either the date the data are recorded for a staged test or the date the data are selected for verification using historical operational data; (2) Requirement R1, Part 1.1 requires a generator owner to verify the real power capability of its generating units as set forth in Attachment 1, including the consideration of ambient conditions during the verification period; and (3) Attachment 1, Sections 2.1 through 2.4, requires reactive power capability verification at multiple points across a unit's operating range.18

18 NERC Petition at 10-12.

2. Reliability Standard MOD-026-1

13. Reliability Standard MOD-026-1, applicable to generator owners and transmission planners, is a new Reliability Standard and has six requirements and an Attachment describing the periodicity for excitation control system or plant volt/var function model verification. NERC explains that the purpose of MOD-026-1 is to ensure that detailed modeling of generator excitation systems, essential for valid simulations in power system stability studies, will be conducted and that those models accurately represent generator excitation control system or plant volt/var control function behavior for bulk electric system reliability assessments.19 Requirement R1 requires transmission planners to provide generator owners with specified information within 90 days of a written request, including instructions on how to obtain models, block diagrams and/or data sheets and model data for any of the generator owner's existing applicable unit specific excitation control system or plant volt/var control function contained in the transmission planner's dynamic database from the current (in-use) models. NERC explains that Requirement R1 ensures that the transmission planner provides necessary information to the generator owners so that they can provide a useable model in an acceptable format. This procedure further supports generator owner compliance with Requirement R2 by providing relevant information to transmission planners.20

19Id. 14-16.

20Id. 15.

14. Requirement R2 requires each generator owner to provide its transmission planner with a verified generator excitation control system or plant volt/var control function model that includes the data and documentation specified in Requirement R2, Part 2.1. The periodicity for this requirement is set forth in Attachment 1. The purpose of Requirement R2 is to verify that the generator excitation control system or plant volt/var control function model and the model parameters used in dynamic simulations performed by the transmission planner accurately represent the generator excitation control system or plant volt/var control function behavior when assessing bulk electric system reliability.21 Requirement R3 requires generator owners to provide written responses to transmission planner requests within 90 days regarding unusable models, technical concerns and transmission planner determinations that simulated excitation control system or plant volt/var control function model responses do not match a recorded response to a transmission system event. NERC explains that Requirement R3 of Reliability Standard MOD-026-1 “provides response requirements for a Generator Owner when it receives certain requests from the Transmission Planner. This communication ensures that Generator Owners have an obligation to respond in a timely fashion when there are demonstrated problems with a model that was provided by the Generator Owner in accordance with Requirement R2.” 22 Under Requirement R4, generator owners are required to determine whether changes to applicable units affect models provided pursuant to Requirement R2 and, when consistent with this determination, to provide the transmission planner with revised model data or plans to perform model verification.

21Id. 16.

22Id. 17.

15. Requirement R5 requires a generator owner to respond within 90 days to a “technically justified unit request” from its transmission planner to perform a model review of a unit or plant, including details for model verification or corrected model data. A footnote to Requirement R5 states that “Technical justification is achieved by the Transmission Planner demonstrating that the simulated unit or plant response does not match the measured unit or plant response.” Also, Applicability section 4.2.4 in MOD-026-1 states that facilities to which the standard applies include “For all Interconnections: A technically justified unit that meets NERC registry criteria but is not otherwise included in the above Applicability sections 4.2.1, 4.2.2, or 4.2.3 and is requested by the Transmission Planner.”

16. NERC explains that Requirement R5 allows transmission planners to request that generator owners who otherwise are not covered by the Applicability section (i.e., whose MVA ratings are lower than the applicability thresholds specified in Section 4 of Reliability Standard MOD-026-1 but meet or exceed the Registry Criteria) provide model verifications or correct model data.23 Requirement R6 requires transmission planners to provide written responses to generator owners within 90 days of receiving a verified excitation control system or plant volt/var control function model information whether the model is usable or not in accordance with Requirement R2. If it determines the model to be unusable, the transmission planner must explain the technical basis for that decision.

23Id. 18.

3. Reliability Standard MOD-027-1

17. Reliability Standard MOD-027-1 is a new Reliability Standard and contains five requirements and an Attachment (Turbine/Governor and Load Control or Active Power Frequency Control Model Periodicity). Its purpose is to verify that the turbine/governor and load control or active power/frequency control model and the model parameters, used in dynamic simulations that assess bulk electric system reliability, accurately represent generator unit real power response to system frequency variations.24 Requirement R1 requires transmission planners to provide generator owners with guidance that will enable generator owners to provide the information required in Requirements R2 and R4 within 90 days of a written request. Requirement R2 requires generator owners to provide transmission planners with a verified turbine/governor and load control or active power/frequency control model for each applicable unit, including documentation and data in accordance with the periodicity specified in MOD-027-1, Attachment 1. Attachment 1 also contains a table listing verification conditions and related actions required of generator owners.25

24 Reliability Standard MOD-027-1, Section A.3 (Purpose).

25 NERC Petition at 20.

18. Requirement R3 establishes communication requirements to ensure that generator owners respond to transmission planner determinations that a generator owner's model is not “usable,” or where there is a difference between the model and three or more actual transmission system events.26 Requirement R3 requires generator owners to provide a written response within 90 days.27 Requirement R4 requires generator owners to provide transmission planners with updates when changes occur to the turbine/governor and load control or active power/frequency control system that alter equipment response characteristics.28 Requirement R5 requires transmission planners to inform generator owners within 90 days of receiving model information (in accordance with Requirement R2) whether the model is usable or not. If a model is unusable, the transmission planner shall provide the generator owner with an explanation of the technical basis for that decision. Also, Requirement R3 requires generator owners to provide a written response to this explanation within 90 days.

26Id. 21.

27Id.

28Id. 22.

4. Reliability Standard PRC-019-1

19. Reliability Standard PRC-019-1 is a new Reliability Standard and contains two requirements intended to ensure that both generator owners and transmission owners verify coordination of generating unit facility or synchronous condenser voltage regulating controls, limit functions, equipment capabilities and protection system settings.29 Requirement R1 requires generator owners and transmission owners to coordinate the voltage regulating system controls with the equipment capabilities and settings of the applicable protection system devices and functions.30 Requirement R2 requires generator owners and transmission owners to perform the coordination described in Requirement R1 to address equipment or setting changes.31 The coordination required in Reliability Standard PRC-019-1 must be performed at least every five years.

29 Reliability Standard PRC-019-1, Section A.3 (Purpose).

30 NERC Petition at 23.

31Id. 24.

5. Reliability Standard PRC-024-1

20. Reliability Standard PRC-024-1 is a new Reliability Standard and consists of four requirements and two Attachments. The stated purpose of PRC-024-1 is to ensure that generator owners set their generator protective relays such that generating units remain connected during defined frequency and voltage excursions.32 Requirement R1 requires generator owners having generator frequency protective relaying activated to trip their generating units to set their protective relaying to prevent their generating units from tripping within the “no trip zone” of PRC-024-1 Attachment 1 (unless one of three specified exceptions applies). NERC explains that Attachment 1 contains tables with curve data points for each Interconnection indicating the amount of time a generator needs to remain connected at specific defined frequency excursions.33 Requirement R2 addresses voltage excursions and requires, subject to four exceptions, generator owners to ensure that their voltage protective relaying settings prevent their generating units from tripping within the “no trip zone” described in PRC-024-1, Attachment 2.

32 Reliability Standard PRC-024-1, Section A.3 (Purpose).

33 NERC Petition at 25.

21. NERC states that the standard drafting team believes the voltage profile contained in Attachment 2 includes excursions that would be expected under Category B and C contingencies.34 Therefore, NERC asserts that by ensuring that generator units remain connected to the grid during voltage excursions, Requirement R2 and Attachment 2 satisfy the directive in Order No. 693 to “explicitly require either that all generators are capable of riding through the same set of Category B and C contingencies, as required by wind generators in Order No. 661, or that those generators that cannot ride through be simulated as tripping.” 35

34See Reliability Standard TPL-002-0b, System Performance Following Loss of a Single Bulk Electric System Element (Category B) and Reliability Standard TPL-003-0b, System Performance Following Loss of Two or More Bulk Electric System Elements (Category C).

22. Requirement R3 of Reliability Standard PRC-024-1 requires generator owners to document regulatory or equipment limitations that would prevent them from satisfying the relay setting criteria in Requirements R1 and R2. Generator owners must inform their planning coordinator and transmission planner of any such limitation within 30 calendar days after identifying it. NERC explains that the standard drafting team believes that “regulatory limitations” include NRC requirements and, therefore, Requirement R3 satisfies the Commission's guidance that “NRC requirements should be used when implementing the Reliability Standards.” 36

23. Requirement R4 requires generator owners to provide their planning coordinator or transmission planner with generator protection trip settings associated with Requirements R1 and R2 within 60 days of either a written request or a change to previously requested trip settings.37

37Id. 31.

III. Notice of Proposed Rulemaking

24. On September 19, 2013, the Commission issued a Notice of Proposed Rulemaking (NOPR) proposing to approve Reliability Standards MOD-025-2, MOD-026-1, MOD-027-1, PRC-019-1 and PRC-024-1.38 The Commission also proposed to approve the associated implementation plans, violation risk factors and violation severity levels, with one modification, and the retirement of existing Reliability Standards MOD-024-1 and MOD-025-1 prior to the effective date of MOD-025-2.

25. While the Commission proposed to approve all five generator verification Reliability Standards, the Commission raised issues regarding certain provisions of Reliability Standards MOD-026-1 and MOD-027-1. In the NOPR, the Commission sought comments on the following issues: (1) Whether the higher applicability thresholds for MOD-026-1 and MOD-027-1 could limit their effectiveness, especially in areas with a high concentration of generators falling below the thresholds, or impede transmission planners' ability to address reliability risk; and (2) whether the provision in Reliability Standard MOD-026-1 allowing transmission planners to compel a generator owner below the applicability threshold with a “technically justified” unit to comply with the Reliability Standard's requirements is “sufficiently clear and workable.” The Commission also sought comment on whether this provision should be included in Reliability Standard MOD-027-1.

26. In response to the NOPR, the Commission received comments from: NERC, Idaho Power Company (Idaho Power), Electricity Consumers Resource Council (ELCON), ISO New England (ISO-NE), Arizona Public Service Company (APS), International Transmission Company (ITC), Edison Electric Institute (EEI), and G&T Cooperatives.39

27. Pursuant to section 215(d) of the FPA, the Commission approves Reliability Standards MOD-025-2, MOD-026-1, MOD-027-1, PRC-019-1 and PRC-024-1 as just, reasonable, not unduly discriminatory or preferential, and in the public interest. The Commission determines that these Reliability Standards will help ensure that verified data is available for power system planning and operational studies by requiring the verification of generator equipment needed to support Bulk-Power System reliability and enhancing the coordination of important protection system settings. Also, Reliability Standards MOD-025-2 and PRC-024-1 satisfy relevant outstanding directives set forth in Order No. 693.40 Further, we approve the retirement of Reliability Standards MOD-024-1 and MOD-025-1 prior to the effective date of MOD-025-2. We also approve the associated implementation plan and, with one exception, the proposed violation risk factors and violations severity levels.

40 Order No. 693, FERC Stats. & Regs. ¶ 31,242 at P 1787.

28. We discuss below the following issues: (A) The Megavolt Amperes (MVA) applicability thresholds for Reliability Standards MOD-026-1 and MOD-027-1; (B) the process for determining when it is “technically justified” for a transmission planner to require a generator owner to provide model reviews under MOD-026-1; (C) why the “technically justified” provision is not also included in MOD-027-1; (D) whether MOD-025-2 should include more flexibility to verify unit reactive power capability; and (E) assignment of violation severity levels.

29. The applicability thresholds in Reliability Standards MOD-026-1 and MOD-027-1 are higher than for Reliability Standards MOD-025-2, PRC-019-1 and PRC-024-1, and could exclude approximately 20 percent of bulk electric system installed MVA from compliance.41 In contrast to the greater than 20 MVA applicability thresholds set forth in the other three Reliability Standards in NERC's petition,42 MOD-026-1 and MOD-027-1 would exclude units rated below 100 MVA (Eastern and Quebec Interconnections), 75 MVA (Western Interconnection) and 50 MVA (ERCOT Interconnection).43

41See NERC Petition, Exhibit E (Summary of the Reliability Standard Development Proceeding and Complete Record of Development of Proposed Reliability Standard) section entitled “Consideration of Comments on Draft Standard” at 91 (indicating that the threshold in the proposed standard would limit applicability of the standard to 80 percent of installed MVA on an Interconnection basis).

30. During the standard development process, several industry stakeholders commented that the standard drafting team should ensure that the applicability thresholds of MOD-026-1 and MOD-027-1 be aligned with the other three proposed Reliability Standards. In response, the standard drafting team stated that “verification of excitation system is expensive both from a monetary and human resource viewpoint. Therefore, the [standard drafting team] believes that these applicability thresholds will result in substantial accuracy improvements to the excitation models and associated Reliability Standards, while not unduly mandating costly and time-consuming verification efforts.” 44

44 NERC Petition, Exhibit E (Summary of the Reliability Standard Development Proceeding and Complete Record of Development of Proposed Reliability Standard) section entitled “Consideration of Comments on Draft Standard” at 91.

NOPR

31. In the NOPR, the Commission sought comment on whether the higher applicability thresholds of MOD-026-1 and MOD-027-1, especially in areas with a high concentration of generators falling below the thresholds, would: (a) limit the effectiveness of proposed Reliability Standards MOD-026-1 and MOD-027-1; or (b) adversely impact transmission planners' ability to reduce risk to Bulk-Power System reliability.45

45 NOPR, 144 FERC ¶ 61,205 at P 27-28.

Comments

32. NERC maintains that the standard drafting team determined that the applicability thresholds for Reliability Standards MOD-026-1 and MOD-027-1 are appropriate. NERC states that the standard drafting team determined, based on its expertise, that there is little, if any, reliability benefit to requiring every generator to comply with MOD-026-1 and MOD-027-1. NERC explains that “the standard drafting team believes that these applicability thresholds will result in substantial accuracy improvements to the excitation models and associated reliability-based limits determined by dynamic simulations, while balancing concerns regarding the resources it [sic] requires to implement verification efforts.” 46 NERC notes that the resources required to implement verification efforts can be extensive: “many entities will require the use of consultants to perform the needed tests and model validations due to the expertise required. For example, it was observed in the SERC field trial that using consultants for MOD-026-1 cost roughly $20,000 to $30,000 for one unit.” 47 NERC further states that Section 4.2.4 of MOD-026-1, allowing transmission planners to request information from all generators when “technically justified,” confirms that the higher applicability threshold “will not limit the effectiveness of” Reliability Standards MOD-026-1 and MOD-027-1.48

33. ELCON, EEI, and APS state that excluding approximately 20 percent of MVA from the applicability of MOD-026-1 and MOD-027-1 will not limit the effectiveness of these Reliability Standards. ELCON states that the higher thresholds would not undermine the effectiveness of MOD-026-1 and MOD-027-1 or hamper “transmission planners' ability to reduce risk to the Bulk-Power System.” 49 EEI states that it “does not view the higher thresholds utilized in the two proposed standards as inappropriate nor do we believe it will diminish reliability or adversely impact transmission planners' ability to reduce risk to the [Bulk- Power System].” 50 Rather, EEI asserts that the thresholds “would be expected to enhance reliability by focusing the limited expertise available for model verification at the units which make the most impact to the dynamic performance of the power system.” 51 APS supports the higher thresholds for Reliability Standards MOD-026-1 and MOD-027-1 because there is limited benefit to reliability to require every generator, regardless of size, to comply, and “the owners of the smaller units are still expected to provide correct estimated model data for use in simulation.” 52 APS asserts that the cost of performing the required model verification for a generation unit is significant and does not vary considerably based on the size of the unit. “Currently, there are a limited number of individuals with the expertise necessary to perform this model verification, and the costs to hire an expert range between $10,000 and $20,000 for each generator unit tested.” 53

49 ELCON Comments at 2.

50 EEI Comments at 5.

51Id.

52 APS Comments at 4.

53Id. 3-4.

34. Idaho Power and ISO-NE state that excluding approximately 20 percent of MVA from the applicability of MOD-026-1 and MOD-027-1 would limit the effectiveness of the Reliability Standards. Idaho Power maintains that many registered generator owners will not be required to comply with the data verification standards, which will ultimately reduce the overall effectiveness of Reliability Standards MOD-026-1 and MOD-027-1.54 Idaho Power bases its comments largely upon its experience with the WECC Modeling and Validation Workgroup (WECC Workgroup), which concluded that the higher thresholds would undermine modeling and simulation accuracy for the WECC region because “[e]xcluding approximately 20 percent of generators based upon different thresholds can lead to very different interpretations of system reliability.” 55 Idaho Power notes that the current WECC policy requiring validation at an aggregate unit threshold of 20 MVA has “greatly improved the accuracy of system models for dynamic simulation [and] a safer and more reliable operation of the WECC Interconnection.” 56 Further, Idaho Power states that generation resources subject to Reliability Standards MOD-026-1 and MOD-027-1 are not spread evenly throughout the interconnection-wide model of the Western Interconnection, which will result in some areas being represented with a lower percentage of validated generation models.57 Idaho Power asserts that the higher thresholds limit the overall effectiveness of the Reliability Standards and believes the Commission should adopt a 10 MVA single unit and 20 MVA aggregate thresholds for the Western Interconnection.58

54 Idaho Power Comments at 2.

55Id. 3.

56Id.

57Id.

58Id. 4.

35. ISO-NE states that “[t]he 100 MVA threshold is too high [and] would limit the effectiveness of these standards and would adversely impact ISO-NE's ability to reduce risk to Bulk Power System reliability by excluding too many generating units in New England.” 59 ISO-NE believes the use of the 20 MVA threshold is supported by NERC's registration requirements and the Commission's determination that “generating units with a capacity as low as 20 MVA can have a significant enough impact that they must comply with the Reliability Standards.” 60 ISO-NE asserts that inaccurate information for a single generating unit below 100 MVA could impact area studies, and units below 100 MVA may collectively impact system operating limits. Finally, ISO-NE raises a concern that exempting generating units under 100 MVA is inconsistent with the high importance placed by NERC and the Commission on Reliability Standard TPL-001-4 Requirement R1.61 ISO-NE also maintains that the application of the “capacity factor exemption” in MOD-026-1, Attachment 1 is unclear. ISO-NE states that, “If large units with low capacity factors are also exempted from verification, then overall system reliability will be further reduced.” 62

36. Like Idaho Power and ISO-NE., ITC states that it is concerned about the aggregate effect that excluding generators will have on the accuracy of transmission system stability studies, particularly for areas of the transmission system where excluded generating units are more highly concentrated.63 However, ITC maintains that its concern is ameliorated by the provision in MOD-026-1 allowing transmission planners to compel generators deemed to have “technically justified” units below the specified threshold to provide such information in order to more accurately assess system stability.

63 ITC Comments at 5-6.

Commission Determination

37. The Commission is persuaded by the comments submitted by NERC and others that the higher applicability thresholds of Reliability Standards MOD-026-1 and MOD-027-1 are appropriate for a continent-wide standard. Moreover, as NERC and ITC point out, Section 4.2.4 of Reliability Standard MOD-026-1 allows transmission planners to request a model review and related verification information in accordance with Requirement R5 from generators below the applicability threshold when “technically justified” (where the simulated unit or plant response does not match the measured unit or plant response). In addition, as APS observed, the higher applicability threshold does not excuse generator owners with small units from the expectation that estimated model data they provide to transmission planners for use in simulations will be accurate. In response to commenters that expressed concerns, in areas where there is a large concentration of small generators, the Commission notes that Regional Entities could develop more stringent requirements, such as a regional standard or regional criteria or process, to assure greater modeling accuracy.64

64 For example, the WECC Modeling and Validation Workgroup concluded that WECC should develop a regional Reliability Standard based upon WECC's existing policy that establishes thresholds of 10 MVA and 20 MVA for single unit and aggregate unit validation respectively.

38. We reject ISO-NE's argument that the applicability threshold is somehow inconsistent with the directive to NERC in Order No. 786 to raise the violation severity level from “medium” to “high” for Reliability Standard TPL-001-4, Requirement R1, which requires transmission planners and planning coordinators to maintain system models.65 We are not persuaded that the violation severity level for Reliability Standard TPL-001-4, Requirement R1 is relevant to the applicability threshold for Reliability Standards MOD-026-1 and MOD-027-1 or how it substantiates ISO-NE's claim that the applicability threshold reduces overall reliability.66

66 We likewise reject ISO-NE's comments regarding application of the capacity factor exemption in Attachment 1 because ISO-NE fails to substantiate the alleged risk of applying the capacity factor exemption to large units.

39. Reliability Standard MOD-026-1 applies to generating units that are connected to the bulk electric system when “technically justified.” Specifically, Applicability Section 4.2.4 allows a transmission planner to compel a generator owner to provide model reviews and related information in accordance with Requirement R5 if the transmission planner demonstrates “that the simulated unit or plant response does not match the measured unit or plant response.” 67 Under such circumstances, generator owners with one or more “technically justified” units must comply with Reliability Standard MOD-026-1, even though each such unit's MVA rating is below the stated MVA threshold for applicability.

40. In the NOPR, the Commission stated that while it agrees with the intent of this section, the way transmission planners would become aware of discrepancies between simulated units and measured units (i.e., the basis for “technically justified” determinations) is unclear. The NOPR stated that the technical justification, or discrepancies between simulated units and measured units, suggests that there should be some benchmark available in the process by which transmission planners identify generator owners for compliance with MOD-026-1. The NOPR observed that the Final Blackout Report on the August 2003 blackout stated that “the regional councils are to establish and begin implementing criteria and procedures for validating data used in power flow models and dynamic simulations by benchmarking model data with actual system performance.” 68 The Commission sought comment as to whether the means or process for transmission planners to determine whether a generator owner's unit is “technically justified” is sufficiently clear and workable. The Commission also requested comment as to whether additional details regarding how the process will be implemented should be included in an attachment to Reliability Standard MOD-026-1.69

68 U.S.-Canada Power System Outage Task Force (Task Force), Final Report on the August 14, 2003 Blackout in the United States and Canada: Causes and Recommendations (April 2004) (Final Blackout Report), Recommendation 24, available at http://www.ferc.gov/industries/electric/indus-act/blackout.asp.

69 NOPR, 144 FERC ¶ 61,205 at PP 29-30.

Comments

41. NERC maintains that the process for transmission planners to determine whether a generator owner's unit is “technically justified” is clear and workable. NERC states that the “technically justified” provision in Reliability Standard MOD-026-1 expands the applicability of the standard, when necessary, i.e., where the simulated unit or plant response does not match the measured unit or plant response. NERC further states that the “standard drafting team determined that it is readily apparent when measured data does not match simulations and that such situations will be sufficiently clear and workable.” 70

70 NERC Comments at 5.

42. ELCON, APS, and EEI believe that the process for transmission planners to determine whether a generator owner's unit is “technically justified” is clear and workable. ELCON maintains that MOD-026-1 is “written with sufficient clarity regarding whether a generator owner's unit is `technically justified.' ” 71 APS supports the “technical justification” provision as written, and believes that the provision “allows transmission planners and planning coordinators the opportunity to address discrepancies between unit simulations and measured unit data,” which APS asserts will be “evident and clear.” 72 EEI believes that the standard as written is “sufficiently clear and enforceable,” because “[a]lthough specific unit performance levels can deviate from a model's predicted response, we do not find this to be problematic; rather, planners need latitude to make judgments based on their knowledge of their regions and what's necessary to assess bulk electric system reliability in their area.” 73 EEI states that the standard drafting team “struck a reasonable balance between providing necessary tools for planners without making [an] unnecessary prescriptive determination as to how to ensure those tools would be applied.” 74 EEI cautions against adding details that “might unintentionally limit or otherwise undermine the regional knowledge and judgment of transmission planners.” 75 Rather, EEI requests that any changes to MOD-026-1 be postponed until industry experience confirms they are needed.

71 ELCON Comments at 2.

72 APS Comments at 5.

73 EEI Comments at 5.

74Id. 6.

75Id.

43. Idaho Power and ISO-NE state that the process for transmission planners to determine whether a generator owner's unit is “technically justified” is unclear, and both assert that the best fix involves lowering the applicability threshold. Idaho Power states that MOD-026-1 does not clearly define what a “match” is or how to evaluate whether a match exists to satisfy the technically justified definition. Idaho Power believes that the Commission should add a provision in MOD-026-1 to include “technically justified” units that meet the NERC registry requirements. Idaho Power seeks additional guidance on when a match between simulated and measured unit or plant responses occurs and the process a transmission planner should undertake to demonstrate such a match.76 ISO-NE states that it is concerned that the test described in MOD-026-1, Applicability Section 4.2.4 would require a disturbance to occur before a transmission planner could determine that a generating unit under 100 MVA is “technically justified.” ISO-NE asserts that “[i]n order for the Transmission Planner to be able to demonstrate that a plant response does not match measured unit or plant response, an event must first occur.” 77 ISO-NE believes that reducing the threshold from 100 MVA to 20 MVA would “eliminate the need for this test, or at least reduce its significance.” 78

76 Idaho Power Comments at 4.

77 ISO-NE Comments at 5.

78Id. 5.

Commission Determination

44. The Commission is persuaded that the basis and associated process for a transmission planner to demonstrate that it is “technically justified” for a generator owner below the applicability threshold to comply with Requirement R5 of Reliability Standard MOD-026-1 under Section 4.2.4 is sufficiently clear and workable. We agree with EEI that a more prescriptive, “one size fits all” approach could “unintentionally limit or otherwise undermine the regional knowledge and judgment of transmission planners.” 79 Further, in the standard drafting team's technical judgment, discrepancies between simulations and measured data will be “readily apparent.” 80 APS concurs, stating that such discrepancies will be “evident and clear.” 81

79 EEI Comments at 6.

80 NERC Comments at 5.

81 APS Comments at 5.

45. Further, the Commission is not persuaded that a change to the applicability thresholds for the Eastern Interconnection, or to the technical justification provision for sub-100 MVA generators, is justified based on ISO-NE's concern that a disturbance would have to occur before a transmission planner could determine that a generating unit is technically justified under Section 4.2.4 of MOD-026-1. ISO-NE is correct that the “demonstration” required by the technical justification provision for sub-100 MVA generators anticipates a system event that would indicate a discrepancy between actual and measured unit response. However, local events that occur in the normal course of operations could provide adequate information for a transmission planner to demonstrate the need to invoke the technically justified provision of Reliability Standard MOD-026-1. While the Commission is satisfied that NERC has proposed a Reliability Standard that improves the reliability of the Bulk-Power System on a continent-wide basis, ISO-NE may seek to develop a more stringent regional approach to address its particular concerns, either through the Northeast Power Coordinating Council's regional Reliability Standards process, an ISO-NE policy, or other means. Considering the strong technical support for Section 4.2.4 as written, we believe the soundest approach is to give the industry time to evaluate the effectiveness of the technically justified provision.

46. Reliability Standard MOD-027-1 does not contain a provision analogous to Applicability Section 4.2.4 of MOD-026-1, which allows a transmission planner to determine whether technical justification exists to subject a generator owner with units falling below the stated applicability threshold to that Reliability Standard. MOD-027-1 and MOD-026-1 have the same applicability thresholds (100 MVA for the Eastern and Quebec Interconnections, 75 MVA for the Western Interconnection, and 50 and 75 MVA for individual and aggregate nameplate ratings, respectively, in ERCOT). However, these Reliability Standards verify models and data of different functions: MOD-026-1 applies to generator excitation control systems and plant volt/var control functions; MOD-027-1 applies to turbine/governor and load control or active power/frequency control functions.

NOPR

47. In the NOPR, the Commission sought comment as to whether the technical justification provision should also be included in Reliability Standard MOD-027-1 to provide an opportunity for transmission planners to address discrepancies between unit simulations and generator owners' measured unit data.

Comments

48. NERC states that this issue was considered and rejected by the standard drafting team. NERC states that the standard drafting team determined that, in contrast to MOD-026-1, the data required by Reliability Standard MOD-027-1 are more subjective and difficult to verify because the verification of governor response models is not consistent from one event to another. NERC further states that Reliability Standard MOD-026-1 “addresses the verification of excitation control system dynamic models—whose modeled behavior in the simulation of system events is a large factor in the determination of local stability limits. In contrast, proposed Reliability Standard MOD-027-1 addresses the verification of turbine/governor and load control models—and this equipment rarely, if ever, contributes to a local stability limit.” 82

82 NERC Comments at 6.

49. EEI, APS and ELCON believe that it is not necessary to include the technical justification provision in MOD-027-1. EEI states that it is unlikely that turbine/governor controls “will materially contribute to a stability limit, while unit governor response has been shown to be inconsistent from one frequency event to the next thereby making such a provision unworkable and of little value.” 83 APS agrees, stating that turbine/governor data verified under MOD-027-1 is not consistent across events, and is more difficult to verify than excitation control system data verified under MOD-026-1. Further, APS states that a discrepancy between a modeled response and a measured response “does not necessarily mean that the model is incorrect. The subjective nature of this determination makes it unsuitable as a standard requirement.” 84

83 EEI Comments at 6-7.

84 APS Comments at 5.

50. Idaho Power and ITC believe that the technical justification provision in MOD-026-1 should be included in Reliability Standard MOD-027-1. Idaho Power asserts that the “[e]xclusion of the technical justification provision in this standard could lead to unverified modeling data. For Idaho Power, this would include entire regions of generation connected to the Bulk Electric System that would have unverified modeling data.” 85 Idaho Power notes that transmission planners perform dynamic simulation studies that require accurate turbine/governor models, including blackstart and under-frequency load shedding simulations. Idaho Power states that blackstart generators may fall below the threshold for compliance with Reliability Standard MOD-027-1 but meet NERC registry requirements.86 ITC states that the turbine/governor, load control, and active power/frequency control data required by MOD-027-1 is just as necessary for accurate system modeling as the excitation control system and plant volt/var function data required by MOD-026-1. ITC asserts that to deprive a transmission planner of MOD-027-1 models and data from technically justified units “is just as deleterious to the transmission planner's ability to accurately assess system stability as it would be if the (sic) such problems occurred with respect to MOD-026-1 data.” 87 ITC further asserts that failing to equip transmission planners with the technically justified provision, particularly for transmission systems that have high concentrations of generator owners below the applicability threshold, “will significantly degrade the accuracy of system models, and by extension, the overall reliability of the Bulk Electric System.” 88

51. The Commission is persuaded that the technical justification provision is not workable in MOD-027-1 because there is more subjectivity involved in verifying the data pertaining to turbine/governors, the equipment subject to the modeling verification requirements of MOD-027-1. As NERC explains, the modeling data for excitation control systems under MOD-026-1 is objective and consistent, while turbine/governor response model verification under MOD-027-1 is not consistent from one event to another. The Commission agrees with APS that determining whether the difference between a model response and a measured response reflects a model defect is subjective and, therefore, the technical justification provision is inappropriate for MOD-027-1. While commenters supporting the inclusion of the technical justification provision in MOD-027-1 assert that verified data for both excitation control systems and turbine/governor response are necessary for accurate system modeling, they do not adequately address the implementation issues resulting from the subjective and inconsistent nature of turbine/governor response data. Therefore, we agree with commenters that the difference in the equipment being verified makes including the technical justification provision in Reliability Standard MOD-027-1 inappropriate.

52. Reliability Standard MOD-025-2 consists of three requirements and two Attachments that are incorporated into each of the requirements. Attachment 1 contains time tables for conducting verifications and specifications for applicable facilities. Attachment 2 contains forms intended to be used to report the information identified in Attachment 1. Requirements R1 and R2 require generator owners to verify Real Power capability and Reactive Power capability, respectively, and Requirement R3 requires transmission owners to verify Reactive Power capability in accordance with Attachment 1. For each Requirement, Attachment 2 establishes a 90 calendar day period within which generator owners and transmission owners must submit information of “either: (i) The date the data is recorded for a staged test; or (ii) the date the data is selected for verification using historical operational data.”

Comments

53. While not addressed in the NOPR, G&T Cooperatives, EEI and ELCON express concern about what they believe is a lack of flexibility in the reactive power verification requirements in Reliability Standard MOD-025-2. G&T cooperatives assert that “MOD-025-2 would establish a needlessly prescriptive approach to verifying unit reactive capability.” Therefore, while they support the Commission's approval of MOD-025-2, G&T Cooperatives request that the Commission “direct NERC to develop a revised version of MOD-025-2 that permits Generator Owners the flexibility to verify unit reactive capability using the method that best meets the individual needs of that Generator Owner provided it can demonstrate that the method is effective.” 89

89 G&T Cooperatives Comments at 2.

54. ELCON views MOD-025-2 as “needlessly prescriptive” and asserts that “at many of the industrial facilities of ELCON members with `behind the meter' generation, its implementation would raise significant economic and safety concerns and be technically and economically infeasible.” 90 While believing that Reliability Standard MOD-025-2 “may inhibit companies from making use of modeling tools,” EEI states that “rather than remand the MOD-025-2 standard proposed for approval, EEI envisions that the standard can serve as an initial basis for now.” 91

90 ELCON Comments at 2.

91 EEI Comments at 2.

Commission Determination

55. The Commission is not persuaded that Reliability Standard MOD-025-2 provides insufficient flexibility for generator owners and transmission owners to verify reactive power capability, or that it is overly prescriptive. Therefore, the Commission will not direct modification of the Reliability Standard. The process for verifying reactive capability under MOD-025-2, Requirement 2.2, requires an entity to submit information to its transmission planner (either through Attachment 2 to MOD-025-2 or a form containing the same information) within 90 calendar days of either: (i) The date the data are recorded for a staged test; or (ii) the date the data are selected for verification using historical operational data. This requirement affords a generator owner or transmission owner with the flexibility to perform verification using either staged test or historical operating data. Further, the standard drafting team rejected the G&T Cooperatives' view that new analytical software tools and engineering studies alone can adequately model unit reactive capability.92

92See, e.g., NERC Petition, Exhibit E (Summary of the Reliability Standard Development Proceeding and Complete Record of Development of Proposed Reliability Standard) section entitled “Consideration of Comments on Draft Standard” at 75.

56. Rather, the Commission agrees with EEI's suggestion that during the implementation of Reliability Standard MOD-025-2, NERC, in consultation with EEI and other industry representatives, should consider potential modifications to MOD-025-2 “that would better reflect rapidly evolving modeling technology, as well as successful methods and processes already in use by some companies.” 93

57. In the NOPR, the Commission expressed concern regarding the proposed violation severity level for Requirement R6 of MOD-026-1 and Requirement R5 of MOD-027-1. For those requirements, NERC proposed a “severe” violation severity level when a transmission planner's written response that a generation owner's verified model is useable “omitted confirmation for all specified model criteria” in the requirement. NERC did not propose any violation severity level for a violation of the last sentence of these requirements: “If the model is not useable, the [transmission planner] shall provide a technical description of why the model is not useable.” The Commission noted that compliance with this obligation is no less important than compliance with the other obligations of these requirements. The Commission further stated that the lack of a violation severity level for this type of violation is inconsistent with the Commission's Violation Severity Level Guideline 3, because the proposed violation severity level does not address all of the obligations in these requirements. Therefore, the Commission proposed to direct NERC to submit a violation severity level that addresses a violation of the last sentence of Requirement R6 of MOD-026-1 and Requirement R5 of MOD-027-1.

Commission Determination

58. No entity submitted comments on this matter. Accordingly, as proposed in the NOPR, we direct NERC to submit a violation severity level that addresses a transmission planner's obligation to provide a technical description of why a model submitted by a generation owner is not usable for Requirement R6 of MOD-026-1 and Requirement R5 of MOD-027-1.

2. Violation Severity Level for PRC-024-1, Requirements R1 and R2NOPR

59. In the NOPR, the Commission addressed NERC's proposal to assign a “severe” violation severity level for a violation of Requirements R1 and R2 of PRC-024-1 when a generator owner fails to set its generator frequency or voltage protective relays so that they do not trip within the criteria listed within Requirements R1 and R2 unless there is a documented and communicated regulatory or equipment limitation under Requirement R3. We observed that Requirements R1 and R2 of PRC-024-1 include three and four bulleted exceptions, respectively, to the requirement that the generator frequency or voltage protective relays not trip applicable generating unit(s) within the “no-trip zone” of Attachment 1or 2 to that standard. For Requirements R1 and R2, only the third and fourth exception, respectively, relate to a regulatory or equipment limitation in accordance with Requirement R3. Therefore, the Commission noted that the wording of the violation severity level for Requirements R1 and R2 could be read to mean that a generator owner that set generator frequency or voltage protective relaying to trip within the “no-trip zone” based on either the first or second exception in Requirement R1 and either the first, second or third exception in R2, violated that Requirement with a severe violation severity level. To avoid such an interpretation, the Commission asked NERC to confirm in its comments that a generator owner will not violate Requirement R1 or R2 if it sets generator frequency or voltage protective relaying to trip within the “no-trip zone” based upon the exceptions for Requirements R1 and R2.

Commission Determination

60. In its comments, NERC responded to the Commission's request by stating that “[c]onsistent with the NOPR, NERC confirms this statement.” 94 Accordingly, with that clarification, the Commission approves the violation severity level for Requirements R1 and R2 of PRC-024-1.

94 NERC Comments at 7.

V. Information Collection Statement

61. The following collections of information contained in the Final Rule are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA).95 OMB's regulations require that OMB approve certain reporting and recordkeeping requirements (collections of information) imposed by an agency.96 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing or recordkeeping requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

95 44 U.S.C. 3507(d) (2006).

96 5 CFR 1320.11 (2013).

62. The Commission will submit these reporting and recordkeeping requirements to OMB for its review and approval under section 3507(d) of the PRA. The Commission received comments on specific requirements in the Reliability Standards approved in this Final Rule. However, the Commission received no comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimate, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing the respondents' burden, including the use of automated information techniques.

63. This Final Rule approves five Reliability Standards: MOD-025-2, MOD-026-1, MOD-027-1, PRC-019-1 and PRC-024-1. Reliability Standard MOD-025-2 would replace Reliability Standards MOD-024-1 and MOD-025-1. In Order No. 693, the Commission did not approve or remand MOD-024-1 and MOD-025-1, as they were identified as “fill-in-the-blank” Reliability Standards for which NERC had not submitted regional procedures.

64. Public Reporting Burden: The burden and cost estimates below are based on the increase in the reporting and recordkeeping burden imposed by the approved Reliability Standards. Our estimate of the number of respondents affected is based on the NERC Compliance Registry as of July 30, 2013.97 According to the Compliance Registry, NERC has registered 901 generator owners and 187 transmission planners within the United States. Currently, synchronous condensers are not included in the NERC Compliance Registry, and the standard drafting team stated that the number of transmission owners who own synchronous condensers is extremely low.

65. The burden estimates reflect the standards and the number of affected entities (e.g., the generator owner's one-time burden to develop testing procedures, verification process, and process for collection of data).

Total11,070$637,632MOD-026-1 (Verification of Models and Data for Generator Excitation Control System or Plant Volt/Var Control Functions)Develop testing procedures, verification process, and process for collection of data356

GO

182,848 one-time$148,096

one-time

($52/hr)

Instructions for obtaining excitation control system or plant voltage/variance control function model187

TP

181,496

one-time

$104,720

one-time

($70/hr)

Documentation on generator verification356

GO

182,848$199,360

($70/hr)

Evidence Retention543

GO and TP

11543$15,204

($28/hr)

Total7,735$467,380MOD-027-1 (Verification of Models and Data for Turbine/Governor and Load Control or Active Power/Frequency Control Functions)Develop testing procedures, verification process, and process for collection of data356

GO

182,848

one-time

$148,096

one-time

($52/hr)

Instructions for obtaining turbine/governor and load control or active power/frequency control model187

TP

181,496

one-time

$104,720

one-time

($70/hr)

Documentation on generator verification356

GO

182,848$199,360

($70/hr)

Evidence Retention543

GO and TP

11543$15,204

($28/hr)

Total7,735$467,380Total for RM13-16$3,054,296

($1,627,640

without

one-time costs)

98 GO = Generator Owner, TP = Transmission Planner.

Assuming 10 generators per generator owner, using EIA-860 2012 generator data (http://www.eia.gov/electricity/data/eia860/) total number of units > 20 MW are 7,379, which results in 738 generator owners. Note that the number of generator owner respondents used to calculate the public reporting burden for MOD-026-1 and MOD-027-1 is 356, due to the higher applicability threshold for those Reliability Standards.

99 The estimates for cost per hour are derived as follows:

$52/hour, the average of the salary plus benefits for an engineer, from Bureau of Labor and Statistics at http://bls.gov/oes/current/naics3_221000.htm andhttp://www.bls.gov/news.release/ecec.nr0.htm

$70/hour, the average of the salary plus benefits for a manager and an engineer, from Bureau of Labor and Statistics at http://bls.gov/oes/current/naics3_221000.htm and http://www.bls.gov/news.release/ecec.nr0.htm.

$28/hour, based on a Commission staff study of record retention burden cost.

Frequency of Responses: One-time, every five years, and every ten years.

Necessity of the Information: The proposed approval of the five Reliability Standards noted above implements the Congressional mandate of the Energy Policy Act of 2005 to develop mandatory and enforceable Reliability Standards to better ensure the reliability of the nation's Bulk-Power System.

Internal Review: The Commission has reviewed the proposed approval to the Reliability Standards and made a determination that its action is necessary to implement section 215 of the FPA. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimate associated with the information requirements.

67. For submitting comments concerning the collection of information and the associated burden estimates, please send your comments to the Commission, and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-4638, fax: (202) 395-7285]. For security reasons, comments to OMB should be submitted by email to: oira_submission@omb.eop.gov. Comments submitted to OMB should include Docket Number RM13-16-000 and OMB Control Number 1902-0252 and 1902-0261.

VI. Regulatory Flexibility Act Certification

68. The Regulatory Flexibility Act of 1980 (RFA) 100 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a proposed rule and that minimize any significant economic impact on a substantial number of small entities. The Small Business Administration's (SBA's) Office of Size Standards develops the numerical definition of a small business.101 Since the issuance of the Proposed Rule, the SBA has revised its size standard for electric utilities from an output based standard (megawatt hours) to number of employees (including affiliates). Under SBA's new size standards, Generator Owners and Transmission Planners likely come under one of four categories and associated size thresholds: 102

69. According to US economic census data,103 over half of the firms in the categories above are small. However, currently FERC does not have information on how the economic census data compares with entities registered with NERC and is unable to estimate the number of small generator owners and transmission planners based on the new SBA definition. Regardless, FERC recognizes that the rule will impact small GOs and TPs and estimates the economic impact on each type of entity below.

103 Data and further information is available from SBA at http://www.sba.gov/advocacy/849/12162.

70. Proposed Reliability Standards MOD-025-2, MOD-026-1, MOD-027-1, PRC-019-1 and PRC-024-1, MOD-025-2 help ensure that generators remain in operation during specified voltage and frequency excursions, properly coordinate protective relays and generator voltage regulator controls, and ensure that generator models accurately reflect the generator's capabilities and equipment performance. The Commission estimates that the small entities to which Reliability Standards PRC-019-1, PRC-024-1 and MOD-025-1 applies will incur compliance 104 and paperwork/record keeping costs 105 totaling $655,228 ($13,372 per generator owner). For Reliability Standards MOD-026-1 and MOD-027-1, the Commission estimates that a subset of the small generator owner entities will incur compliance and paperwork/record keeping costs of $198,176 ($9,008 per generator owner).106 This will result in a per entity compliance and paperwork/record-keeping cost for the subset of generator owners complying with MOD-026-1 and MOD-027-1 of $22,380 107 and the remaining small generator owners who only have to comply with PRC-019-1, PRC-024-1 and MOD-025-1 incurring a $13,372 cost per entity, as previously described. Additionally, small transmission planner entities will incur compliance and paperwork/record keeping costs 108 totaling $49,392 ($1,176 per transmission planner) 109 to comply with MOD-026-1 and MOD-027-1.

104 Assuming 50 hours per generator owner per reliability standard for relay settings/testing and other non-paperwork based on $70/hour. These are non-paperwork related costs, not associated with the burden described in the information collection section above.

105 This cost came from the above PRC-019-1, PRC-024-1, and MOD-025-2 tables in the information collection section.

106 These two figures were not calculated correctly in the NOPR and have been corrected here.

107 This figure was not calculated correctly in the NOPR and has been corrected here.

108 This cost came from the above MOD-026-1 and MOD-027-1 tables in the information collection section.

109 These two figures were not calculated correctly in the NOPR and have been corrected here.

71. The Commission does not consider the estimated costs per small entity to have a significant economic impact on a substantial number of small entities. Accordingly, the Commission certifies that this Final Rule will not have a significant economic impact on a substantial number of small entities.

VII. Environmental Analysis

72. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.110 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.111 The actions proposed here fall within this categorical exclusion in the Commission's regulations.

73. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

74. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

75. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov.

IX. Effective Date and Congressional Notification

76. These regulations are effective May 27, 2014. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.

In accordance with 18 CFR 381.104, the Commission issues this update of its filing fees. This notice provides the yearly update using data in the Commission's Management, Administrative, and Payroll System to calculate the new fees. The purpose of updating is to adjust the fees on the basis of the Commission's costs for Fiscal Year 2013.

In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

From FERC's Web site on the Internet, this information is available in the eLibrary (formerly FERRIS). The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page.

User assistance is available for eLibrary and other aspects of FERC's Web site during normal business hours. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659.

Annual Update of Filing Fees(Issued March 20, 2014)

The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2013 costs. The adjusted fees announced in this notice are effective April 28, 2014. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States.

§ 381.302 [Amended]2. In 381.302, paragraph (a) is amended by removing “$ 24,370” and adding “$ 24,260” in its place.§ 381.303 [Amended]3. In 381.303, paragraph (a) is amended by removing “$ 35,580” and adding “$ 35,410” in its place.§ 381.304 [Amended]4. In 381.304, paragraph (a) is amended by removing “$ 18,650” and adding “$ 18,570” in its place.§ 381.305 [Amended]5. In 381.305, paragraph (a) is amended by removing “$ 6,990” and adding “$ 6,960” in its place.§ 381.403 [Amended]6. Section 381.403 is amended by removing “$ 12,130” and adding “$ 12,070” in its place.§ 381.505 [Amended]7. In 381.505, paragraph (a) is amended by removing “$ 20,960” and adding “$ 20,860” in its place and by removing “$ 23,720” and adding “$ 23,610” in its place.[FR Doc. 2014-06596 Filed 3-26-14; 8:45 am]BILLING CODE 6717-01-PDEPARTMENT OF JUSTICEBureau of Alcohol, Tobacco, Firearms, and Explosives27 CFR Part 447[Docket No. ATF-25I; AG Order No. 3423-2014]RIN 1140-AA45Importation of Arms, Ammunition and Defense Articles—Removal of Certain Defense Articles Currently on the U.S. Munitions Import List That No Longer Warrant Import Control Under the Arms Export Control Act (2011R-25P)AGENCY:

The Department of Justice is amending Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regulations to remove those defense articles currently on the U.S. Munitions Import List that ATF by delegation has determined no longer warrant import control under the Arms Export Control Act.

DATES:

Effective date: This interim final rule is effective April 28, 2014.

Comment date: Written comments must be postmarked and electronic comments must be submitted on or before June 25, 2014. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period.

ADDRESSES:

You may submit comments, identified by docket number (ATF 25I), by any of the following methods—

Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to the Federal eRulemaking portal, http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

Section 38 of the Arms Export Control Act of 1976 (AECA), 22 U.S.C. 2778, as amended, authorizes the President, in furtherance of world peace and the security and foreign policy of the United States, to control the import and the export of defense articles and defense services. 22 U.S.C. 2778(a)(1). The AECA also authorizes the President to designate those items that shall be considered defense articles and defense services for the purposes of section 38, and to promulgate regulations for the import and export of such articles and services. Id.

Through Executive Order 13637 of March 8, 2013, the President delegated his AECA authority to the Secretary of State with respect to the export and temporary import of defense articles and defense services. E.O. 13637, 78 FR 16129. The International Traffic in Arms Regulations (ITAR), 22 CFR part 120 et seq., implement the Secretary of State's delegated authority and list the defense articles and defense services regulated for export, re-export, and temporary import by the Secretary of State. The items so designated constitute the State Department's regulatory United States Munitions List (USML) of the ITAR.

Also through Executive Order 13637, the President delegated to the Attorney General the authority under the AECA to control the permanent import of defense articles and defense services. E.O. 13637, 78 FR 16129. In exercising that authority, the Attorney General “shall be guided by the views of the Secretary of State on matters affecting world peace, and the external security and foreign policy of the United States.” Id. at sec. 1(n)(ii). Controlling the import of defense articles and defense services furthers United States foreign policy and national security interests and is a foreign affairs function of the U.S. Government. That executive order also requires that the Attorney General obtain the concurrence of the Secretary of State and the Secretary of Defense and provide notice to the Secretary of Commerce for designations, including changes in designations, of defense articles and defense services subject to permanent import control. Id.

To distinguish the regulatory list of defense articles and defense services controlled by the Attorney General for permanent import from the regulatory list of defense articles and defense services controlled by the Secretary of State for export and temporary import, the list of defense articles and defense services controlled by the Attorney General for permanent import is the United States Munitions Import List (USMIL). The regulations governing this list appear at 27 CFR part 447.

The Attorney General delegated administration of the import provisions of the AECA to the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), subject to the direction of the Attorney General and the Deputy Attorney General. 28 CFR 0.130(a). ATF promulgated regulations that implement the provisions of section 38 of the AECA in 27 CFR part 447. With guidance from the Department of State and concurrence from the Departments of State and Defense pursuant to Executive Order 13637, ATF administers the list of items subject to import control under the USMIL, at 27 CFR 447.21.

II. The President's Export Control Reform Initiative

In August 2009, the President directed a broad-based interagency review of the United States export control system in part to identify additional ways to enhance national security, better focus resources on protecting items for export that need to be protected, and provide clarity to make it easier for exporters to comply with regulations and for the United States Government to administer and enforce the regulations. As the result of a comprehensive review of export controls, it was determined that certain defense articles and defense services listed on the USML no longer warrant control for export purposes by the Secretary of State pursuant to the AECA. Pursuant to section 38(f) of the Arms Export Control Act, those defense articles are being transferred to the Department of Commerce's Commerce Control List (CCL) for export control under the authority of the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq.

In effecting the President's export control reform initiative, the export control reform interagency task force identified a way to improve the United States import control system to enhance national security and focus resources on protecting items for import that need to be protected. Accordingly, the task force requested ATF to identify those defense articles that no longer warrant control on the USMIL.

III. Interim Final Rule

ATF reviewed the USMIL in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” and the export control reform interagency task force request. Those defense articles on the USMIL that ATF (acting through authority delegated from the President to the Attorney General, and in turn delegated by the Attorney General to ATF) has determined no longer warrant import control under the AECA are being removed from the USMIL. Controlling the permanent import of defense articles furthers United States foreign policy and national security interests and is a foreign affairs function of the U.S. Government. This interim final rule amends the regulations at 27 CFR 447.21 by removing those defense articles currently on the USMIL determined to no longer warrant import control under the AECA.

The Department is removing from the USMIL Category I—Firearms, paragraph (e), “Riflescopes manufactured to military specifications and specifically designed or modified components therefor.” The defense articles currently covered by Category I, paragraph (e) are readily available through diverse domestic commercial sources and they do not present a significant concern for trafficking or diversion into illicit channels. The defense articles currently covered by Category I, paragraph (e) do not warrant import control under the AECA. The Department reserves this paragraph.

In Category III—Ammunition, the Department is removing and then reserving paragraphs (c), “Ammunition belting and linking machines,” and (d), “Ammunition manufacturing machines and ammunition loading machines (except handloading ones).” These defense articles are costly, difficult to maintain, too heavy for easy transport, and readily available from domestic vendors in the United States. These defense articles do not pose a trafficking and diversion threat warranting import control under the AECA.

In addition, in Category IV—Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines, the Department is removing and reserving paragraph (f), “Ablative materials fabricated or semi-fabricated from advanced composites (e.g., silica, graphite, carbon, carbon/carbon, and boron filaments) for the articles in this category that are derived directly from or specifically developed or modified for defense articles.” Such materials are a low threat to domestic security and are readily available in the domestic market.

In Category VI—Vessels of War and Special Naval Equipment, the Department is clarifying paragraph (a) to read: “Vessels of War, if they are armed and equipped with offensive or defensive weapons systems, including but not limited to amphibious warfare vessels, landing craft, mine warfare vessels, patrol vessels, auxiliary vessels, service craft, experimental types of naval ships, and any vessels specifically designed or modified for military purposes or other surface vessels equipped with offensive or defensive military systems.” The new text focuses precisely on defense articles that might threaten domestic security or enable terrorist activities.

Further in Category VI—Vessels of War and Special Naval Equipment, the Department is revising paragraph (b) to read: “Turrets and gun mounts, special weapons systems, protective systems, and other components, parts, attachments, and accessories specifically designed or modified for such articles on combatant vessels.” The new language focuses on defense articles that might threaten domestic security or enable terrorist activities. Also in Category VI, the Department is removing and reserving paragraphs (c) and (d). Mine sweeping equipment, harbor entrance detection devices, and related components and controls have numerous domestic suppliers and are low threats to domestic security. Additionally, the Department is revising the note in Category VI to clarify that the examples of vessels of war provided in Category VI must be armed and equipped with offensive or defensive weapon systems to be considered a defense article on the USMIL.

The Department is updating Category VII—Tanks and Military Vehicles by removing and reserving paragraph (g), “Engines specifically designed or modified for the vehicles in paragraphs (a), (b), (c), and (f) of this category.” The defense articles listed in Category VII, paragraph (g) are substantially the same as those commercially available in the domestic market and not likely to be diverted for criminal use. The Department is revising paragraph (h) and including two explanatory notes. The Department is also adding a new paragraph (i), with a corresponding new note to Category VII to clarify that this category includes within its scope other ground vehicles that meet four technical parameters in the Wassenaar Arrangement's Munitions List Category 6.

In Category XIV—Toxicological Agents and Equipment and Radiological Equipment, the Department is removing and reserving paragraph (b) (biological agents) and revising paragraph (c) to limit regulation to all specifically designed or modified equipment, including components, parts, accessories, and attachments, for disseminating the articles in paragraph (a) of this category. The U.S. Department of Health and Human Services and the U.S. Department of Agriculture regulate the import and use of biological agents under such acts as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, and the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Public Law 107-188. Therefore, continued inclusion of these items on the USMIL is unnecessary to ensure domestic security. Further, by removing and reserving paragraph (d) (nuclear radiation detection and measuring devices manufactured to military specification) and paragraph (e) (components, parts, accessories, attachments, and associated equipment specifically designed or modified for the articles in paragraphs (c) and (d) of this category), the Department recognizes the domestic availability of these articles and the associated low threat to domestic security.

Finally, the Department is updating policies related to Category XVI—Nuclear Weapons Design and Test Equipment, to the extent that imports of these defense articles are under the control of the Department of Energy pursuant to the Atomic Energy Act of 1954, as amended, and the Nuclear Non-proliferation Act of 1978, as amended, or are government transfers authorized pursuant to these Acts. The Department is removing and reserving paragraph (a), (any article, material, equipment, or device, which is specifically designed or modified for use in the design, development, or fabrication of nuclear weapons or nuclear explosive devices), revising paragraph (b) to include modeling or simulation tools that model or simulate the environments generated by nuclear detonations or the effects of these environments on systems, subsystems, components, structures, or humans, and adding an explanatory note after paragraph (b) to indicate that Category XVI does not include equipment, technical data, or services controlled by the Department of Energy pursuant to the Atomic Energy Act of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978, as amended, or are government transfers authorized pursuant to these Acts.

Pursuant to Executive Order 13637, the Department of State and the Department of Defense have concurred on this interim final rule amending the USMIL.

IV. Statutory and Executive Order ReviewA. Executive Order 12866

Because the amendments to 27 CFR part 447 involve a foreign affairs function of the United States, Executive Order 12866 does not apply.

B. Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, “Federalism”, the Attorney General has determined that this regulation does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

C. Executive Order 12988

This regulation meets the applicable standards set forth in subsections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”

D. Administrative Procedure Act

As reflected in 27 CFR 447.54, amendments made to 27 CFR part 447 are exempt from the rulemaking provisions of 5 U.S.C. 553 because this part involves a foreign affairs function of the United States. See 5 U.S.C. 553(a)(1). Accordingly, it is not necessary to issue this rule using the notice and public procedure set forth in 5 U.S.C. 553(b), and the requirement of a delayed effective date in 5 U.S.C. 553(d) does not apply. The Department of Justice nevertheless wishes to provide the public with an opportunity to participate in the regulatory process and provide feedback pursuant to Executive Order 13563, “Improving Regulation and Regulatory Review.” Accordingly, the Department is publishing this rule as an interim final rule with a 90-day provision for public comment and without prejudice to its determination that controlling the import of defense articles is a foreign affairs function of the United States Government.

E. Regulatory Flexibility Act

The provisions of the Regulatory Flexibility Act relating to an initial and final regulatory flexibility analysis are not applicable to this interim final rule because the Department is not publishing the rule as a general notice of proposed rulemaking under 5 U.S.C. 553 or any other law. See 5 U.S.C. 601 et seq.

F. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule is not likely to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

G. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

H. Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no reporting or recordkeeping requirements.

Public ParticipationA. Comments Sought

The Department is requesting comments on the interim final rule from all interested persons. The Department is also specifically requesting comments on the clarity of this interim final rule and how it may be made easier to understand.

All comments must reference this document docket number (ATF 25I), be legible, and include your name and mailing address. The Department will treat all comments as originals and will not acknowledge receipt of comments.

Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date.

B. Confidentiality

Comments, whether submitted electronically or on paper, will be made available for public viewing at ATF, and on the Internet as part of the eRulemaking initiative, and are subject to the Freedom of Information Act. Commenters who do not want their name or other personal identifying information posted on the Internet should submit their comment by mail or facsimile, along with a separate cover sheet that contains their personal identifying information. Both the cover sheet and comment must reference this docket number. Information contained in the cover sheet will not be posted on the Internet. Any personal identifying information that appears within the comment will be posted on the Internet and will not be redacted by ATF.

Any material that the commenter considers to be inappropriate for disclosure to the public should not be included in the comment. Any person submitting a comment shall specifically designate that portion (if any) of the comment that contains material that is confidential under law (e.g., trade secrets, processes, etc.). Any portion of a comment that is confidential under law shall be set forth on pages separate from the balance of the comment and shall be prominently marked “confidential” at the top of each page. Confidential information will be included in the rulemaking record but will not be disclosed to the public. Any comments containing material that is not confidential under law may be disclosed to the public. In any event, the name of the person submitting a comment is not exempt from disclosure.

C. Submitting Comments

Comments may be submitted in any of three ways:

• Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments must appear in minimum 12 point font size (.17 inches), include your mailing address, and be signed, and may be of any length.

Copies of this interim rule and the comments received will be available for public inspection online at www.regulations.gov and by appointment during normal business hours at: ATF Reading Room, Room 1E-062, 99 New York Avenue NE., Washington, DC 20226, telephone (202) 648-8740.

Drafting Information

The author of this document is George M. Fodor, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives.

(a) Vessels of War, if they are armed and equipped with offensive or defensive weapon systems, including but not limited to amphibious warfare vessels, landing craft, mine warfare vessels, patrol vessels, auxiliary vessels, service craft, experimental types of naval ships, and any vessels specifically designed or modified for military purposes or other surface vessels equipped with offensive or defensive military systems.

(b) Turrets and gun mounts, special weapons systems, protective systems, and other components, parts, attachments, and accessories specifically designed or modified for such articles on combatant vessels.

(c) [Reserved]

(d) [Reserved]

(e) * * *

Note:

The term “vessels of war” includes, but is not limited to, the following, if armed and equipped with offensive or defensive weapons systems:”.

CATEGORY VII—TANKS AND MILITARY VEHICLES

(g) [Reserved]

(h) Tank and military vehicle parts, components, accessories, attachments, and associated equipment for offensive or defensive systems for the articles in this category, as follows:

(1) Armored hulls, armored turrets and turret support rings;

(2) Active protection systems (i.e., defensive systems that actively detect and track incoming threats and launch a ballistic, explosive, energy or electromagnetic countermeasure(s) to neutralize the threat prior to contact with a vehicle);

(8) Kits specifically designed to convert a vehicle in this category into either an unmanned or a driver-optional vehicle. For a kit to be controlled by this paragraph it must include all of the following:

(1) Manufactured or fitted with materials or components to provide ballistic protection to level III (NIJ 0108.01, September 1985) or better;

(2) A transmission to provide drive to both front and rear wheels simultaneously, including those vehicles having additional wheels for load bearing purposes whether driven or not;

(3) Gross Vehicle Weight Rating (GVWR) greater than 4,500 kg; and

(4) Designed or modified for off-road use.

Note:

An “amphibious vehicle” in Category VII(f) is a vehicle or chassis that is equipped to meet special military requirements, and that is designed or adapted for operation on or under water, as well as on land.

Note:

Engines and engine parts are not included in paragraph (h) of Category VII.

Note:

Paragraph (i) of Category VII does not apply to civil vehicles designed or modified for transporting money or valuables.

(c) All specifically designed or modified equipment, including components, parts, accessories, and attachments for disseminating the articles in paragraph (a) of this category.

(d) [Reserved]

(e) [Reserved]

CATEGORY XVI—NUCLEAR WEAPONS DESIGN AND TEST EQUIPMENT

(a) [Reserved]

(b) Modeling or simulation tools that model or simulate the environments generated by nuclear detonations or the effects of these environments on systems, subsystems, components, structures, or humans.

Note:

Category XVI does not include equipment, technical data, or services controlled by the Department of Energy pursuant to the Atomic Energy Act of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978, as amended, or are government transfers authorized pursuant to these Acts.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) is amending its regulations regarding the electronic submission of forms to provide for the electronic submission to TTB of copies of certain forms, where the original is to be retained by the submitter along with other records. This amendment removes a barrier that industry members have faced when trying to apply for permits completely by electronic means. TTB is also amending its regulations to address circumstances where TTB requires certain information to be submitted to other agencies. Specifically, the amendments provide that TTB requirements for information to be submitted to another agency may be met by the electronic submission of the information, as long as the other agency has provided for such a submission of information by electronic means.

In addition, TTB is amending its regulations governing the records that distilled spirits plant (DSP) proprietors must keep of finished products. Specifically, TTB is removing the requirement that DSP proprietors keep a daily summary record of the kind of distilled spirits bottled or packaged.

Finally, TTB is amending its regulations regarding closures that must be affixed to containers of imported distilled spirits products or of such products brought into the United States from Puerto Rico or the Virgin Islands. The amendments remove a requirement that a part of the closure remain attached to the container when opened. This amendment will align the regulations for such products with those applicable to domestic distilled spirits products.

The Internal Revenue Code of 1986, as amended (IRC), at 26 U.S.C. chapters 51 and 52, provides for the regulation of certain alcohol- and tobacco-related businesses. In addition, the Federal Alcohol Administration Act (FAA Act), at 27 U.S.C. chapter 8, provides for the regulation of certain operations of beverage alcohol businesses. Chapters 51 and 52 of the IRC and sections 103 and 104 of the FAA Act (27 U.S.C. 203 and 204) vest the Secretary of the Treasury with authority to prescribe regulations related to the issuance of permits, registrations, and notices for such businesses. The IRC provisions also include requirements for persons operating in certain alcohol and tobacco industries to obtain bonds and to submit reports and other documents related to regulated operations. In addition, section 4222 of the IRC (26 U.S.C. 4222) establishes registration requirements for persons who make tax-free sales of firearms and ammunition.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these provisions, pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (Revised), dated December 10, 2013, to the TTB Administrator to perform the functions and duties in administration and enforcement of these laws.

Electronic Submission of Forms and Use of Electronic Signatures on Forms

TTB regulations implementing the permit, registration, and notice requirements of the IRC and the FAA Act are promulgated in chapter I of title 27 of the Code of Federal Regulations (27 CFR chapter I). These regulations require certain current and prospective industry members to obtain approval before commencing a new TTB-regulated industry operation and to update permit information for an existing TTB-regulated business. These regulations also require that certain forms, reports, and other documents be submitted to TTB, depending on the operation. These documents may include operational reports, bonds, and powers of attorney, where applicable. In addition, some provisions require that the regulated industry members submit documents to other agencies. For example, provisions relating to the importation of the regulated commodities require that, in some circumstances, documents must be submitted to U.S. Customs and Border Protection (CBP) during the entry process.

The TTB regulations currently implementing those requirements generally provide for the submission to TTB of applications and other documents in paper form. Under certain conditions, forms may be submitted electronically through an electronic document receiving system. The electronic submission of forms to TTB is governed by the TTB regulations at part 73 (27 CFR part 73). Part 73 sets forth the conditions under which TTB will allow current and prospective industry members to submit forms to TTB electronically, and to use electronic signatures or digital signatures to sign those forms, in lieu of submitting paper forms with handwritten signatures. These regulations do not currently address the electronic submission of TTB-required forms and documents to other agencies.

Pursuant to the TTB regulations at 27 CFR 73.31, TTB-regulated industry members may submit an electronic form instead of a paper form to satisfy any reporting requirement in chapter I of Title 27 CFR under certain conditions. Currently, the conditions are as follows: (1) TTB has published a notice in the Federal Register and on its Web site (http://www.ttb.gov) announcing that it is prepared to receive a particular form electronically; (2) the person required to submit the form has registered to do so, pursuant to the instructions in that notice; (3) that person submits the electronic form to an electronic document receiving system that TTB has designated for the receipt of that specific form; and (4) the electronic form bears valid electronic signatures, as provided in subpart B of part 73, to the same extent that the paper form for which it substitutes would bear handwritten signatures.

Amendments to Part 73

Recently, TTB has facilitated electronic communications and transactions in many ways. For example, TTB has made a number of electronic document receiving systems available to industry members. These secure, web-based applications include: Permits Online, which allows members of the alcohol, tobacco, and firearms and ammunition industries to submit electronically original and amended applications to operate TTB-regulated businesses and to make tax-free sales of firearms and ammunition; COLAs Online, which allows industry members to submit electronically applications for certificates of label approval for alcohol beverages; and Formulas Online, which electronically accepts applications for approval of beverage and non-beverage alcohol product formulas.

Through these systems and other Web-based means, current and prospective industry members may fill out applications and related forms online by answering a set of questions that mirror those on the hardcopy forms, by inserting the information requested into an electronic image of a form, or by uploading copies of forms and other documents. The amendments to part 73 that are made in this rulemaking are intended to facilitate all of these ways of electronically submitting forms and information to TTB.

One type of form specifically addressed by this rulemaking requires the signature of a third party (that is, a party other than (1) the applicant or regulated entity, or (2) TTB). For example, with many types of applications, TTB requires the filing of a bond. When the applicant uses a corporate surety bond to meet this requirement, the original signature of an agent or officer of the surety company may be required on the bond form. In addition, certain TTB regulations require that whenever an agent or an officer executes the bond on behalf of the surety, the bond must be supported by a signed power of attorney authorizing the agent or officer to execute the bond, prepared on the surety's own form, and with the surety company's seal affixed to the form. See, for example, 27 CFR 19.156, 24.150, and 40.401.

Another example of a form requiring third-party signatures is the power of attorney form, TTB F 5000.8, used by current and prospective industry members to designate the person or persons authorized to execute applications, notices, bonds, tax returns, tax information disclosure authorizations, and other instruments on behalf of the industry member, and to act for the industry member in dealing with TTB. Powers of attorney are submitted with many applications for permits or authorizations to operate regulated businesses in order to allow persons other than officers, directors, sole proprietors, partners, or members to sign or speak on behalf of the applicant businesses. See, for example, 27 CFR 1.30, 19.78, and 25.65. This form requires the signatures of not only a person with authority to execute the power of attorney on behalf of the industry member, but also the person designated as the industry member's attorney in fact, as well as either the signature of a notary or the signatures of two disinterested witnesses.

Because some required forms must be signed by third parties, and because these third parties are not authorized to, and do not currently have the means to, sign the forms electronically, these forms cannot, under current regulations, be executed and submitted electronically. As a result, it is not currently possible for many applicants to submit complete applications through electronic means. In such cases, applicants have submitted all other forms electronically through Permits Online and have had to mail separately paper versions of the forms requiring third-party signatures.

To streamline the application process and to enable current and prospective industry members to submit all required application forms electronically, TTB is amending § 73.31 to add two alternatives to the requirement that the form bear a valid electronic signature for every handwritten signature required on the form. The new § 73.31(b) contains three subparagraphs. The first subparagraph restates the current requirement that the form bear a valid electronic signature. The second subparagraph provides that, if the form requires a signature of a person who is not registered to submit the electronic form under § 73.31(a), or if the form requires a corporate seal, a copy of the completed form (bearing all required signatures and seals) may be submitted electronically, along with a certification or acknowledgement that the copy submitted electronically is an exact copy of the original, and that the original bears signatures of all required parties and any required corporate seal. New § 73.31(b)(2) also provides that if a copy of the completed form bearing all required signatures and seals is submitted electronically, the submitter must maintain the original completed form on the submitter's premises and make it available for inspection by TTB or submission to TTB upon request. If all of these conditions are not met for documents requiring third-party signatures or corporate seals, the submission of such forms electronically will not satisfy the requirements for submission of the forms to TTB.

A third new subparagraph, at § 73.31(b)(3), provides for the electronic submission both of copies of TTB forms that are not available in an electronic format and of documents other than TTB forms that are required to be submitted to TTB. This latter category includes, for example, a commercial document that may be submitted to satisfy a reporting requirement. In effect, this new subparagraph allows the regulated industry to submit electronically copies of a wide range of documents, as long as the copies are submitted along with a certification that the copy is an exact copy of the original, the original is maintained along with any other records required by TTB, and the original is made available or submitted to TTB upon request. This provision would allow industry members to submit a copy of an original document, for example, when required to do so by a TTB representative or by an instruction that appears in the electronic document receiving system.

TTB continues to enhance and upgrade its electronic document receiving systems to improve both functionality and the user experience. The regulatory change set forth in this rulemaking should allow users to take advantage of new functionalities related to the submission of information electronically, as those functionalities are introduced.

In addition to the changes to § 73.31 described above, TTB is removing references in §§ 73.31 and 73.35 to TTB's publishing of certain notices in the Federal Register. Specifically, § 73.31 currently states that certain forms will be accepted electronically upon condition that, among other things, TTB has published a notice in the Federal Register announcing that it is prepared to receive the particular form electronically. Section 73.35 currently provides that, if the TTB regulations require the keeping of records in paper format, TTB may authorize the keeping of electronic copies of such documents “through a general notice in the Federal Register or through a variance.” TTB is now removing both references to Federal Register notices to allow greater flexibility for TTB to provide for the use of electronic forms.

This final rule also adds new 27 CFR 73.40 and updates 27 CFR 73.1 to provide that documents required by TTB to be submitted to other agencies may be submitted electronically to those agencies, if the agency authorizes such submission.

Finally, TTB is making technical changes to §§ 73.30, 73.31, 73.33 and 73.34, to make it clear that the provisions regarding electronic submission of forms cover all forms that must be submitted to TTB, not only those commonly associated with “reporting.”

Distilled Spirits Finished Products Records

Section 5207 of the IRC (26 U.S.C. 5207) requires that distilled spirits plant (DSP) proprietors keep records in such form and manner as the Secretary of the Treasury prescribes by regulation, including records of “* * * the kind and quantity of distilled spirits packaged or bottled * * *.” Regulations that implement the provisions of section 5207 of the IRC as they relate to distilled spirits finished products records are set forth in part 19 of title 27 of the Code of Federal Regulations (CFR), at 27 CFR 19.601.

The Part 19 Revision

On May 8, 2008, TTB published in the Federal Register a notice of proposed rulemaking (Notice No. 83, 73 FR 26200), which proposed to revise the DSP regulations contained in 27 CFR part 19. In that notice, TTB stated that it intended to modernize the requirements for operating DSPs and, in effect, remove burdens and make the regulations easier to understand, allowing DSP proprietors to operate more efficiently. As part of this proposed revision, TTB proposed to amend the regulations providing for the maintenance of finished products records by adding a requirement, in new 27 CFR 19.601(a), that DSP proprietors maintain a daily summary record of the kind of finished products bottled or packaged within the processing account at the DSP. The recordkeeping regulations in effect at the time of the proposed rulemaking in Notice No. 83 (then at 27 CFR 19.751) required DSPs to maintain daily summary records of the quantity, but not the kind, of products bottled or packaged.

TTB had believed that this recordkeeping change proposed in Notice No. 83 merely aligned the regulatory text more closely with the statutory provision set forth at 26 U.S.C. 5207(a)(4)(B) and would assist TTB auditors during tax compliance audits, but would not result in any significant additional burden on industry members. DSP proprietors already were required under the existing regulations to maintain records of the kind of distilled spirits bottled or packaged for each lot of spirits bottled or packaged, although not in the form of a daily summary record as proposed in Notice No. 83. See current 27 CFR 19.599, formerly 27 CFR 19.732.

During the comment period for the regulatory changes proposed in Notice No. 83, TTB did not receive any comments addressing the addition of the new requirement to maintain a daily summary record by kind. Accordingly, this requirement was adopted as part of the final rule issued as Treasury Decision (T.D.) TTB-92, published in the Federal Register at 76 FR 9080, on February 16, 2011. T.D. TTB-92 became effective on April 18, 2011.

Subsequent Correspondence Regarding § 19.601

Shortly after publication of T.D. TTB-92, TTB received a letter, dated April 21, 2011, from both the Distilled Spirits Council of the United States, Inc. (DISCUS) and the Presidents' Forum of the Beverage Alcohol Industry (Presidents' Forum). DISCUS and the Presidents' Forum requested that TTB either provide an industry-wide variance from the new daily summary record by kind requirement, given the Bureau's past success in collecting distilled spirits excise taxes, or issue a formal 18-month extension for compliance with § 19.601, which would give industry time to develop data systems for the new recordkeeping requirement.

In their April 21 letter, DISCUS and the Presidents' Forum also stated that complying with the new requirement would be expensive for industry. Industry members would need to develop new data systems capable of recording the information necessary to comply. Developing these data systems could cost from $20,000 to $50,000 per industry member.

In a letter, dated June 16, 2011, TTB responded to the letter from DISCUS and the Presidents' Forum. In that letter, TTB stated:

While TTB is not authorized to issue a waiver from the provisions of § 19.601, we understand that proprietors may need extra time to comply with the new provisions of the regulation. Accordingly, if a DSP is otherwise compliant with the TTB regulations, TTB will not take adverse action solely on the basis of the failure to have the daily summary as to kind required by § 19.601(a) until October 18, 2012.

After issuing the June 16, 2011 letter, TTB received additional information from DISCUS and the Presidents' Forum indicating that modifications of DSP recordkeeping systems would be more expensive than anticipated. TTB then decided to take regulatory action to amend § 19.601 to remove the requirement that DSPs maintain daily summary records by kind. In a second letter to DISCUS and the Presidents' Forum, dated August 28, 2012, TTB extended the deadline to comply with the provisions of § 19.601(a) regarding the daily summary records by kind for another 18 months, until April 18, 2014.

As previously stated, TTB had not believed that the change in the regulations requiring a daily summary record by the kind of distilled spirits bottled and packaged would create a significant recordkeeping burden on industry members. During past audits, TTB has been able to determine, on a case-by-case basis from source documents and records, the information that TTB had intended to be included in the daily summary record of the kind of distilled spirits bottled or packaged.

TTB Determination

Upon further consideration of this matter, TTB determined that it can continue to effectively administer the chapter 51 provisions without DSP proprietors creating a daily summary record of the kind of distilled spirits bottled and packaged. Accordingly, in this rulemaking, TTB is removing the requirement in § 19.601 that a DSP must maintain such a daily summary record.

Closures on Containers of Distilled Spirits Products Brought Into the United States From Puerto Rico or the Virgin Islands or Imported Into the United States

Section 5301(d) of the IRC (26 U.S.C. 5301(d)) addresses the closures of containers of distilled spirits. That paragraph states that the immediate container of distilled spirits withdrawn from bonded premises, or from customs custody, on determination of tax shall bear a closure or other device which is designed so as to require breaking in order to gain access to the contents of the container. This requirement does not apply to containers of bulk distilled spirits. In addition to this specific provision, section 7805 of the IRC (26 U.S.C. 7805) provides more general authority to the Secretary of the Treasury to prescribe all “needful rules and regulations” for the enforcement of the IRC.

Regulations that implement the statutory provisions regarding closures on distilled spirits product containers are set forth in part 19 of the TTB regulations (relating to distilled spirits products removed from domestic DSPs), part 26 (relating to distilled spirits products brought into the United States from Puerto Rico or the Virgin Islands), and part 27 (relating to distilled spirits products imported into the United States) (27 CFR parts 19, 26, and 27).

Part 19 Revision

On May 8, 2008, TTB published in the Federal Register a notice of proposed rulemaking (NPRM) (Notice No. 83, 73 FR 26200), which proposed to revise the DSP regulations contained in 27 CFR part 19. At the time of that NPRM, the regulations in 27 CFR part 19 required that domestic distilled spirits products having a capacity of one gallon (3.785 liters) or less must have a closure attached to the container, which must be broken in order to access the product, and that a part of the closure must remain attached to the container once it is opened. The same requirement appeared in parts 26 and 27 applicable to distilled spirits products brought into the United States from Puerto Rico or the Virgin Islands and distilled spirits products imported into the United States, respectively. As part of the revision of the part 19 regulations, TTB thoroughly reviewed the regulations with regard to the operation of DSPs in the United States and, in that context, the requirements regarding closures of distilled spirits containers. TTB explained in Notice No. 83 that it was proposing to remove from the part 19 regulations the requirement that a part of the closure remain attached to the container once opened, stating:

In our proposed regulation at § 19.523, we require that the container have a closure that must be broken to gain access to the contents. However, we have deleted the requirement that a portion of the closure remain on the container when opened. The particular feature of the current regulation is not a requirement of the IRC at 26 U.S.C. 5301(d). Further, we have received several requests for an alternate method or procedure from this particular requirement, and we see no continued need for this feature on the closure.

TTB adopted the proposed change to the part 19 regulations in a final rule (T.D. TTB-92, 76 FR 9080) published in the Federal Register on February 16, 2011. T.D. TTB-92 became effective on April 18, 2011. As a result of these actions, closures on domestic distilled spirits products are not required to include a part that remains attached to the container once it is opened. However, because parts 26 and 27 were outside the scope of the rulemaking actions described above, closures on distilled spirits products brought into the United States from Puerto Rico or the Virgin Islands or imported into the United States are still required to include a part that remains attached to the container once it is opened. See 27 CFR 26.136, 26.231, and 27.62.

Since publishing T.D. TTB-92, TTB has received requests from Diageo Americas Supply, Inc. and from DISCUS asking TTB to take action on this issue to provide consistent treatment of all distilled spirits containers.

TTB Determination

TTB believes that the same considerations should apply to containers of imported distilled spirits or of such products brought into the United States from Puerto Rico or the Virgin Islands as apply to containers of domestic distilled spirits. As a result, TTB is amending its regulations at §§ 26.136, 26.231, and 27.62, respectively, to remove the requirements that closures on containers of distilled spirits brought into the United States from Puerto Rico or the Virgin Islands or imported into the United States include a part that remains attached to the container once opened.

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. Pursuant to 26 U.S.C. 7805(f), TTB submitted this final rule to the Chief Counsel for Advocacy of the Small Business Administration (SBA) for comment on the impact of the regulations on small businesses, and TTB received no comments from the SBA on this final rule.

Paperwork Reduction Act

This final rule imposes no new collection of information. The amendments to part 73 merely offer an additional method for submitting required forms to TTB and other agencies and will not result in a substantive or material change to any underlying information collection.

With regard to this final rule's amendment of § 19.601, when TTB had revised part 19 of the TTB regulations in T.D. TTB-92, TTB did not believe that the addition of the requirement that DSPs maintain a daily summary record as to kind would be at all burdensome to industry, as discussed above. Consequently, TTB did not make any change to the information collection associated with § 19.601 (Office of Management and Budget Control Number 1513-0041, which covers recordkeeping requirements at DSPs). Since T.D. TTB-92 became effective, TTB has not enforced the requirement to keep daily summary records for the reasons discussed above, and TTB is now removing this requirement from § 19.601. Therefore, no change to information collection number 1513-0041 is necessary as a result of this regulatory action.

Finally, amendments to 27 CFR parts 26 and 27 that remove a requirement related to the closures on containers of distilled spirits brought into the United States from Puerto Rico or the Virgin Islands or imported into the United States have the effect of reducing a regulatory burden on industry members and have no bearing on any information collection.

Under the Paperwork Reduction Act, an agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a valid OMB control number.

Executive Order 12866

It has been determined that this final rule is not a significant regulatory action as defined in Executive Order 12866 of September 30, 1993. Therefore, a regulatory assessment is not necessary.

Prior Notice and Comment Procedures

TTB is issuing this final rule without notice and prior opportunity for public comment in accordance with section 553(b)(A) of the Administrative Procedure Act (5 U.S.C. 553(b)(A)). This provision authorizes an agency to issue a rule without prior notice and comment when it issues rules of agency procedure. Most of the regulatory changes contained in this final rule amend the manner in which TTB will accept and process various forms required by the TTB regulations. Those changes are procedural because they impact only the method of filing applications and other documents with TTB.

Section 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)) also authorizes an agency to forgo notice and comment when the agency for good cause finds that those procedures are unnecessary. TTB believes prior notice and comment are unnecessary with respect to all changes contained in this final rule because we expect the affected public will benefit immediately from (1) having an additional option for document submission that facilitates an all-electronic environment as an alternative to hard-copy submission of these forms; (2) the removal of a recordkeeping requirement; and (3) the removal of a regulatory requirement related to the types of closures that must be used on certain containers of distilled spirits. Accordingly, TTB has determined that it is unnecessary to follow prior public notice and comment procedures.

For the reasons set forth above, the 5 U.S.C. 553(b) notice requirement does not apply.

Drafting Information

Kate M. Bresnahan of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document.

2. The first sentence of § 19.601(a) is revised to read as follows:§ 19.601 Finished products records.

(a) Bottling and packaging. A proprietor must maintain daily transaction records and a daily summary record of the quantity of finished products bottled or packaged within the processing account at the distilled spirits plant. * * *

PART 26—LIQUORS AND ARTICLES FROM PUERTO RICO AND THE VIRGIN ISLANDS3. The authority citation for part 26 continues to read as follows:Authority:

Each container of distilled spirits having a capacity of one gallon (3.785 liters) or less must have a closure or other device securely affixed to the container. The closure or other device must be constructed in such a manner as to require breaking in order to gain access to the contents of the container.

Each container of distilled spirits having a capacity of one gallon (3.785 liters) or less must have a closure or other device securely affixed to the container. The closure or other device must be constructed in such a manner as to require breaking in order to gain access to the contents of the container.

PART 27—IMPORTATION OF DISTILLED SPIRITS, WINES, AND BEERS6. The authority citation for part 27 continues to read as follows:Authority:

Each container of imported distilled spirits having a capacity of one gallon (3.785 liters) or less must have a closure or other device securely affixed to the container. The closure or other device must be constructed in such a manner as to require breaking in order to gain access to the contents of the container.

PART 73—ELECTRONIC SIGNATURES; ELECTRONIC SUBMISSION OF FORMS8. The authority citation for part 73 is revised to read as follows:Authority:

26 U.S.C. 6011(f), 6061(b), 7502(c); 44 U.S.C. 3504 Note.

§ 73.1 [Amended]9. Section 73.1, paragraph (a)(2), is amended by adding the words “or, where applicable, to other agencies” before the period.10. Section 73.30 is revised to read as follows:§ 73.30 What does subpart C cover?

This subpart provides the conditions under which TTB will allow you to satisfy certain requirements to submit forms in this chapter by submitting forms electronically to TTB.

11. Section 73.31 is revised to read as follows:§ 73.31 May I submit forms electronically to TTB?

Yes; to satisfy any requirement to submit forms in this chapter (including a requirement to submit an original form or copies), you may submit an electronic form or you may submit, by electronic means, a copy of an original form, but only if:

(a) You submit the form through an electronic document receiving system that TTB has designated for the receipt of that specific form and for which you have registered if so required; and

(b) The conditions in any one of the following paragraphs apply:

(1) It is an electronic form that bears valid electronic signatures, as provided in subpart B of this part, to the same extent that the paper submission for which it substitutes would bear handwritten signatures;

(2) It is a copy of an original form that requires the signature of a third party who is not the person required to submit the form (such as a bond form or a power of attorney form) or a corporate seal; you submit the copy of the form electronically along with a certification that the copy is an exact copy of the original; the original bears all signatures of all required parties and any required corporate seal; and you maintain the original along with any other records required by TTB and make it available or submit it to TTB upon request; or

(3) It is a copy of a TTB form that is not available in an electronic format or it is a document other than a TTB form (that is, other than a document issued by TTB that bears an Office of Management and Budget control number) that is required to be submitted to TTB; you submit the copy electronically along with a certification that the copy is an exact copy of the original; and you maintain the original along with any other records required by TTB and make it available or submit it to TTB upon request.

§ 73.33 [Amended]12. Section 73.33 is amended by removing the word “reporting” in the first sentence.§ 73.34 [Amended]13. Section 73.34 is amended by removing the words “your report” and adding in their place the words “the document”.§ 73.35 [Amended]14. Section 73.35 is amended by removing the words “a general notice in the Federal Register or through a variance” in the second sentence and adding in their place the words “an approved alternate method or procedure”.15. New Subpart D is added to read as follows:Subpart D—Electronic Filing of Documents With Other Agencies§ 73.40 May I satisfy TTB requirements to submit forms to other agencies by submitting those forms electronically?

You may satisfy any requirement in the TTB regulations to submit a form to another agency by submitting such form to such agency by electronic means, as long as the agency provides for, and authorizes, the electronic submission of such form and you satisfy any registration or related requirement by that agency for that electronic submission. The submission of a form electronically to another agency does not alter any requirement regarding copies you must maintain.

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Rock Island Railroad and Highway Drawbridge across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois. The deviation is necessary to allow the Front Street 5K Run/Walk to cross the bridge. This deviation allows the bridge to be maintained in the closed-to-navigation position for one hour.

DATES:

This deviation is effective from 7 p.m. to 8 p.m., June 12, 2014.

ADDRESSES:

The docket for this deviation, [USCG-2014-0144] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone 314-269-2378, email Eric.Washburn@uscg.mil. If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

The U.S. Army Rock Island Arsenal requested a temporary deviation for the Rock Island Railroad and Highway Drawbridge, across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois to remain in the closed-to-navigation position for a one hour period from 7 p.m. to 8 p.m., June 12, 2014, while the Front Street 5K Run/Walk is held between the cities of Davenport, IA and Rock Island, IL.

The Rock Island Railroad and Highway Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that drawbridges shall open promptly and fully for the passage of vessels when a request to open is given in accordance with the subpart.

There are no alternate routes for vessels transiting this section of the Upper Mississippi River.

The Rock Island Railroad and Highway Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 23.8 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary deviation has been coordinated with waterway users. No objections were received.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Metro-North (Devon) Bridge across the Housatonic River, mile 3.9, at Stratford, Connecticut. The deviation is necessary to facilitate structural repairs at the bridge. This temporary deviation authorizes the bridge to remain in the closed position Monday through Thursday for eight weeks to facilitate repairs at the bridge.

DATES:

This deviation is effective from 6 a.m. on April 1, 2014 through 6 p.m. on May 22, 2014.

ADDRESSES:

The docket for this deviation, USCG-2014-0119 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 668-7165, email judy.k.leung-yee@uscg.mil. If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

The Metro-North (Devon) Bridge at mile 3.9, across Housatonic River at Stratford, Connecticut, has 19 feet of vertical clearance at mean high water and 25 feet of vertical clearance at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.207(b).

The owner of the bridge, Connecticut Department of Transportation, requested a temporary deviation from the schedule to facilitate structural repairs at the bridge.

The waterway has recreational vessels traffic of various sizes.

Under this temporary deviation the Metro-North (Devon) Bridge at mile 3.9, across the Housatonic River may remain in the closed position from 6 a.m. Monday through 6 p.m. on Thursday, from April 1, 2014 through May 22, 2014. Vessels able to pass through the bridge in the closed positions may do so at anytime. There is no alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

The Coast Guard contacted the marinas and no objections were received.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Secretary of Education (Secretary) announces a priority that the Department of Education (Department) may use for any appropriate discretionary grant program in fiscal year (FY) 2014 and future years. Through this action, we intend to focus Federal financial assistance on expanding the number of Department programs and projects that support activities in designated Promise Zones.

This action will permit all offices in the Department to use this priority, as appropriate, in any discretionary grant competition.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:Program Authority:

20 U.S.C. 1221e-3, 3474.

We published a proposed priority (NPP) in the Federal Register on October 25, 2013 (78 FR 63913). That notice contained background information and our reasons for proposing the priority. There are no differences between the NPP and this notice of final priority.

Public Comment: In response to our invitation in the NPP, 10 parties submitted comments on the proposed priority. Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.

Analysis of Comments and Changes: An analysis of the comments follows.

Comment: Several commenters addressed the Promise Zones Initiative as described in the Background Section of the NPP. Many expressed support for the Promise Zones Initiative, its potential to impact community residents, and the inclusion of a focus on education in the designated Promise Zones. Other commenters expressed concerns about the small number of Promise Zones designations to be made, about the funding and resources that would be made available to Promise Zones designees, about how the progress of the Promise Zones Initiative would be evaluated, and whether the 10-year timeframe of the designation would be sufficient to realize long-term impacts. Additionally, one commenter requested clarification on the role that Federal staff would play in working with Promise Zones designees, and two commenters suggested that the Promise Zone Initiative should expand resident access to housing opportunities in higher income communities.

Discussion: We appreciate the feedback and suggestions on the Promise Zones Initiative. The Department coordinates with the U.S. Departments of Housing and Urban Development, Agriculture, and Justice to support the administration of the Promise Zones Initiative. As such, we will share the comments regarding the broader initiative with our Federal Promise Zones partners for consideration in the development and implementation of any Promise Zones opportunity. However, because the comments about the broader initiative do not provide specific recommendations for the Department's proposed priority, we are not providing a direct response to each topic raised in these comments.

Changes: None.

Comment: Two commenters stated their support for the Promise Zones priority and the important role that education can play in revitalizing a community. While supportive of the purpose of Promise Zones, one commenter expressed concern about including a priority for a potential pool of 20 Promise Zone designees. The commenter further stated that because the scope of the Promise Zones Initiative is small, it does not make sense to prioritize those few communities.

Discussion: We appreciate the commenters' support for the President's efforts to combat poverty, and we agree that education is critical to building ladders of opportunity to the middle class. While the ultimate number of Promise Zones communities is relatively small, the number of discretionary grants that might support Promise Zones is not so limited. The priority can be used with any appropriate discretionary grant competition, and all eligible entities that are planning to serve and coordinate with a Promise Zone, such as local educational agencies and non-profit organizations, may respond to this priority. The purpose of the Department's Promise Zone priority is to focus the Department's grant resources on communities of acute need, as indicated by their Promise Zone designation.

Furthermore, the Promise Zones Initiative provides a unique opportunity for cross-agency collaboration that will likely benefit other communities as well. For example, the participating Federal agencies will be working with the designated Promise Zones to improve coordination among Federal resources to enhance place-based strategies and increase the progress of community revitalization initiatives. As outcomes are achieved and best practices are developed, Federal agencies will apply relevant lessons learned regarding the delivery of Federal funding and services to other communities working toward similar goals. In addition, we expect that the joint investment in and evaluation of Promise Zones will result in the creation of strong, comprehensive models of community transformation that will inform the work of other communities.

Changes: None.

Comment: Two commenters expressed concern that a Promise Zones priority may result in the exclusion of other potential applicants from receiving an award. Of those commenters, one commenter's concern was specific to the TRIO Upward Bound program. Another commenter requested that the Department work with the charter school community prior to the use of the priority in the Charter Schools program, a discretionary grant program. One commenter raised a concern that layering a Promise Zone priority onto a program with a different focus might weaken the existing program.

Discussion: We recognize that Federal discretionary grant funds are highly competitive and provide critical support to communities that are working to improve student academic achievement. However, the Department's Promise Zones priority is intended to focus limited Federal resources in designated Promise Zones in order to improve the outcomes of the families, students, and children in those highly distressed locations. As stated in the NPP, the Secretary recognizes that this priority will not be appropriate for all discretionary grant programs. Each discretionary grant program is in the best position to work with its constituent communities and to determine the priorities critical to achieving their program outcomes. Additionally, when determining whether to use a priority in a given discretionary grant competition, the Department considers the intended goals of the program in order to ensure the use of any priority is appropriate to and aligned with the purpose of the discretionary program. The Promise Zones priority will not be used if it is not appropriate to the intent or purpose of a program or would somehow diminish its effect.

Changes: None.

Final Priority

To ensure that the Department's discretionary grant programs can provide, where appropriate, the increased access to additional investments for Promise Zones, the Secretary establishes a priority for projects that will serve and coordinate with a federally designated Promise Zone.

Final priority—Promise Zones.

Projects that are designed to serve and coordinate with a federally designated Promise Zone.

Types of Priorities: When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

This notice does not preclude us from proposing additional priorities, subject to meeting applicable rulemaking requirements.

Note:

This notice does not solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the Federal Register.

Executive Orders 12866 and 13563Regulatory Impact Analysis

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.

This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this final priority only on a reasoned determination that its benefits would justify its costs. In choosing among alternative regulatory approaches, we selected the approach that would maximize net benefits. Based on the analysis that follows, the Departments believe that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this proposed regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Intergovernmental Review: Some of the programs affected by this proposed priority are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fedsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access document of the Department published in the Federal Register, by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

The Environmental Protection Agency (EPA) is taking direct final action to revise the regulatory definition of volatile organic compounds (VOCs) under the Clean Air Act (CAA). This direct final action adds 2-amino-2-methyl-1-propanol (also known as AMP; CAS number 124-68-5) to the list of compounds excluded from the regulatory definition of VOCs on the basis that this compound makes a negligible contribution to tropospheric ozone formation.

DATES:

This rule is effective June 25, 2014 without further notice, unless the EPA receives adverse comment on this action by May 27, 2014. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the final rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2013-0775, by one of the following methods:

• Hand Delivery: EPA Docket Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue NW., William Jefferson Clinton, West Building Room: 3334, Mail Code: 28221T, Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2013-0775. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2013-0775. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov, or email. The www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Docket ID No. EPA-HQ-OAR-2013-0775, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., William Jefferson Clinton West Building, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742.

SUPPLEMENTARY INFORMATION:Table of ContentsI. Why is the EPA using a direct final rule?II. Does this action apply to me?III. BackgroundA. The EPA's VOC Exemption PolicyB. Petition To List AMP as an Exempt CompoundIV. The EPA's Assessment of the PetitionA. Contribution to Tropospheric OzoneB. Likelihood of Risk to Human Health or the EnvironmentC. Climate ImpactsD. ConclusionsV. Direct Final ActionVI. Statutory and Executive Order ReviewsA. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory ReviewB. Paperwork Reduction ActC. Regulatory Flexibility ActD. Unfunded Mandates Reform ActE. Executive Order 13132: FederalismF. Executive Order 13175: Consultation and Coordination With Indian Tribal GovernmentsG. Executive Order 13045: Protection of Children From Environmental Health and Safety RisksH. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or UseI. National Technology Transfer and Advancement ActJ. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income PopulationsK. Congressional Review ActL. Judicial ReviewI. Why is the EPA using a direct final rule?

The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This action revises the EPA's regulatory definition of VOCs for purposes of preparing SIPs to attain the NAAQS for ozone under title I of the CAA. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to make this revision to the regulatory definition of VOCs if adverse comments are received on the parallel proposal or this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

II. Does this action apply to me?

Entities potentially affected by this direct final rule include, but are not necessarily limited to, state and local air pollution control agencies that adopt and implement regulations to control air emissions of VOCs; and industries manufacturing and/or using pigments in water-based coatings, additives in metalworking fluids and in food contact paper, neutralizers in personal care products, and intermediates in chemical synthesis.

III. BackgroundA. The EPA's VOC Exemption Policy

Tropospheric ozone, commonly known as smog, is formed when VOCs and nitrogen oxides (NOX) react in the atmosphere in the presence of sunlight. Because of the harmful health effects of ozone, the EPA and state governments limit the amount of VOCs that can be released into the atmosphere. The VOCs are those organic compounds of carbon which form ozone through atmospheric photochemical reactions. Different VOCs have different levels of reactivity. That is, they do not react to form ozone at the same speed or do not form ozone to the same extent. Some VOCs react slowly or form less ozone; therefore, changes in their emissions have limited effects on local or regional ozone pollution episodes. It has been the EPA's policy that organic compounds with a negligible level of reactivity should be excluded from the regulatory definition of VOCs so as to focus VOCs control efforts on compounds that do significantly increase ozone concentrations. The EPA also believes that exempting such compounds creates an incentive for industry to use negligibly reactive compounds in place of more highly reactive compounds that are regulated as VOCs. The EPA lists compounds that it has determined to be negligibly reactive in its regulations as being excluded from the regulatory definition of VOCs. (40 CFR 51.100(s)).

The CAA requires the regulation of VOCs for various purposes. Section 302(s) of the CAA specifies that the EPA has the authority to define the meaning of “VOC,” and hence what compounds shall be treated as VOCs for regulatory purposes. The policy of excluding negligibly reactive compounds from the regulatory definition of VOCs was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005). The EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and therefore suitable for exemption from the regulatory definition of VOCs. Compounds that are more reactive than ethane continue to be considered VOCs for regulatory purposes and therefore are subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 policy.

The EPA has used three different metrics to compare the reactivity of a specific compound to that of ethane: (i) The reaction rate constant (known as kOH) with the hydroxyl radical (OH); (ii) the maximum incremental reactivity (MIR) on a reactivity per unit mass basis; and (iii) the MIR expressed on a reactivity per mole basis. Differences between these three metrics are discussed below.

The kOH is the reaction rate constant of the compound with the OH radical in the air. This reaction is typically the first step in a series of chemical reactions by which a compound breaks down in the air and participates in the ozone-forming process. If this step is slow, the compound will likely not form ozone at a very fast rate. The kOH values have long been used by the EPA as a metric of photochemical reactivity and ozone-forming activity, and they have been the basis for most of the EPA's previous exemptions of negligibly reactive compounds from the regulatory definition of VOCs. The kOH metric is inherently a molar-based comparison, i.e., it measures the rate at which molecules react.

The MIR, both by mole and by mass, is a more recently developed metric of photochemical reactivity derived from a computer-based photochemical model. This metric considers the complete ozone forming activity of a compound on a single day, not merely the first reaction step. Further explanation of the MIR metric can be found in Carter, 1994.

The MIR values for compounds are typically expressed as grams of ozone formed per gram of VOC (mass basis), but they may also be expressed as grams of ozone formed per mole of VOC (molar basis). For comparing the reactivities of two compounds, using the molar-based MIR values considers an equal number of molecules of the two compounds. Alternatively, using the mass-based MIR values compares an equal mass of the two compounds, which will involve different numbers of molecules, depending on the relative molecular weights. The molar-based MIR comparison is consistent with the original smog chamber experiments that underlie the original selection of ethane as the threshold compound, in that these experiments compared equal molar concentrations of individual VOCs. It is also consistent with previous reactivity determinations based on kOH values, which are inherently molar-based. By contrast, the mass-based MIR comparison is more consistent with how MIR values and other reactivity metrics have been applied in reactivity-based emission limits, such as the national VOC emissions standards for aerosol coatings (40 CFR part 59 subpart E). Many other VOCs regulations contain limits based upon a weight of VOC per volume of product, such as the EPA's regulations for limiting VOC emissions from architectural coatings (40 CFR part 59 subpart D). However, the fact that regulations are structured to measure VOC content by weight for ease of implementation and enforcement does not necessarily control whether VOC exemption decisions should be made on a weight basis as well.

The choice of the molar basis versus the mass basis for the ethane comparison can be significant. In some cases, a compound might be considered less reactive than ethane under the mass basis but not under the molar basis. For compounds with molecular weights higher than that of ethane, use of the mass basis results in more VOCs being classified as less reactive than ethane than use of the molar basis.

The EPA has considered the choice between a molar or mass basis for the comparison to ethane in past rulemakings and guidance. In the Interim Guidance, the EPA stated:

[A] comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect ozone concentrations and a threshold that is high enough to exempt some compounds that may usefully substitute for more highly reactive compounds.

When reviewing compounds that have been suggested for VOC-exempt status, EPA will continue to compare them to ethane using kOH expressed on a molar basis and MIR values expressed on a mass basis.

The EPA's 2005 Interim Guidance also noted that concerns have sometimes been raised about the potential impact of a VOC exemption on environmental endpoints other than ozone concentrations, including fine particle formation, air toxics exposures, stratospheric ozone depletion and climate change. The EPA has recognized, however, that there are existing regulatory and non-regulatory programs that are specifically designed to address these issues, and the EPA continues to believe in general that the impacts of VOC exemptions on environmental endpoints other than ozone formation will be adequately addressed by these programs. The VOC exemption policy is intended to facilitate attainment of the ozone NAAQS. As such, in general, VOC exemption decisions will continue to be based solely on consideration of a compound's contribution to ozone formation. However, if EPA determines that a particular VOC exemption is likely to result in a significant increase in the use of a compound and that the increased use would pose a significant risk to human health or the environment that would not be addressed adequately by existing programs or policies, the EPA reserves the right to exercise its judgment in deciding whether to grant an exemption.

B. Petition To List AMP as an Exempt Compound

Dow Chemical Company submitted a petition to the EPA on October 12, 2012, requesting that 2-amino-2-methyl-1-propanol (also known as AMP; CAS number 124-68-5) be exempted from the regulatory definition of VOCs based on its low reactivity relative to ethane. The petitioner indicated that AMP may be used in a variety of applications including in industries involved in the manufacture or use of pigments in water-based coatings, as an additive in metalworking fluids, in food contact paper, as a neutralizer in personal care products, and as an intermediate in chemical synthesis.

To support its petition, Dow Chemical referenced several documents, including a technical report on the maximum incremental reactivity of AMP (Carter, 2012) and two peer-reviewed journal articles on its reaction rates. According to these documents, the reactivity of AMP is 0.25 gm O3/gm AMP in the maximum incremental reactivity (MIR) scale. The reactivity rate is slightly less than that of ethane, 0.28 gm O3/gm ethane, the compound that the EPA has used for comparison to define “negligible” ozone reactivity for the purpose of exempting compounds from the regulatory definition of VOCs. The rate constant for the gas-phase reaction of OH radicals with AMP, (kOH) has been measured to be 2.8 × 10−11 cm3/molecule-sec at ~300 K (Harris and Pitts, 1983), giving it a relatively short lifetime in the atmosphere and thus reducing its ability to contribute to ozone formation. Under the conventional assumption of OH concentration of 3 × 106 molecules/cm3, AMP would decay exponentially with a mean lifetime of about 4 hours (Carter, 2008). Based on the measured reactivity rate of AMP (Harris and Pitts, 1983), AMP has a larger kOH than ethane (ethane = 2.4 × 10−13) and therefore it is initially more reactive than ethane, but as explained in detail in Carter, 2008, AMP's first reaction primarily terminates radicals rather than cycling them and therefore generally reduces ozone. With regard to stratospheric ozone depletion, the petitioner stated that the ozone depletion potential of AMP is insignificant based on the expected possible initial reactions described in Carter 2008 and the general theory supporting the estimated mechanisms discussed in Carter 2012. Given that AMP has a relatively short atmospheric lifetime, and because it does not contain chlorine or bromine, it is not expected to contribute to the depletion of the stratospheric ozone layer.

IV. The EPA's Assessment of the Petition

The EPA is taking direct final action to approve the petition for exemption of AMP from the regulatory definition of VOCs. This action is consistent with the 2005 Interim Guidance based on comparison of the three reactivity metric values for AMP to the corresponding values for ethane. As a short-lived substance, there is no evidence that AMP would have a substantial climate impact: AMP meets the Interim Guidance criteria for no significant risks in terms of environmental endpoints other than ozone formation. Information on these topics is given in the following sections.

A. Contribution to Tropospheric Ozone

The reaction rate of AMP for reaction with OH radical (kOH) has been measured to be 2.8 × 10−11 cm3/molecule-sec (Harris and Pitts, 1983); other reactions with ozone and nitrate radical were negligibly small. The corresponding reaction rate of ethane with OH is 2.4 × 10−13 cm3/molecule-sec (Atkinson et al., 2006).

The overall atmospheric reactivity of AMP was studied in an experimental smog chamber, and the chemical mechanism derived from this study was used to model the complete formation of ozone for an entire single day under realistic atmospheric conditions (Carter, 2012). Using the standard 39-city array of input conditions, Carter calculated a MIR value of 0.25 g O3/g VOC for AMP for “averaged conditions,” versus 0.28 g O3/g VOC for ethane.

Table 1 presents the three reactivity metrics for AMP as they compare to ethane.

From the data in Table 1, it can be seen that AMP has a higher kOH value than ethane, meaning that it initially reacts more quickly in the atmosphere than ethane. Also, a molecule of AMP is more reactive than a molecule of ethane in terms of complete ozone forming activity as shown by the molar-based MIR (g O3/mole VOC) values. However, the nitrogen-centered radical in AMP scavenges radicals, primarily NOX and is expected to form nitramine that is assumed to be inert according to Harris and Pitts, 1983. This is in line with the effects of AMP addition on ozone concentration reduction observed in the chamber experiments of Carter, 2008. The early reactivity of AMP is thus short lived, because the reaction pathway is terminated by the intermediate production of assumed inert nitramine. Unlike other VOCs, AMP is a base and might be lost to some degree by reaction with HNO3, forming non-volatile amine salts, reducing its availability in the gas phase for O3 formation. As a result, one gram of AMP has a lower MIR value than one gram of ethane. Thus, under the 2005 Interim Guidance AMP is eligible to be exempted from the regulatory definition of VOCs, on the basis of the mass-based MIR.

B. Likelihood of Risk to Human Health or the Environment

Information in Dow Chemical Company's petition and its appendices as well as the reference material indicates that AMP has low toxicity (Griffin 1990), no irritation or skin sensitization, and no detectable genotoxic activity in vitro or in vivo. AMP was subject to the Ames test, the mouse lymphoma assay and the mouse micronucleus test (Gudi, 1998; San and Clark, 1997; and Wagner 1996) and was found negative in these studies among several others. AMP has a toxicity profile amply documented in the appendices provided with the petition material and placed in the docket for this rulemaking. AMP also has a favorable toxicity profile supported by the Hazard Characterization Document dedicated to AMP published by EPA in March of 2012, titled “Screening-level Hazard Characterization of High Production Volume Chemicals—2-Amino-2-methyl-1-propanol (AMP) CASRN 124-68-5” under the High Production Volume (HPV) Challenge Program.1

1 U.S. EPA. High Production Volume (HPV) Challenge Program; http://www.epa.gov/chemrtk/hpvis/hazchar/124685_AMP_March_2012.pdf.

In addition, AMP is a reasonably strong base and forms salts with acids. Therefore, in many formulations very little AMP will evaporate and will be available for atmospheric reaction due to its ionic or salt form. Therefore, exposure is low due to low volatility at room temperature. However, repeated inhalation of vapor or mist could cause respiratory irritation. Burnett et al. (2009) reviewed safety data and found that AMP is safe to use in cosmetics after he performed several acute inhalation studies with AMP as well as with AMP in alcohol and propellant. The studies indicated that AMP is nontoxic by inhalation. The studies also tested other routes of exposure and found them to be nontoxic as well.

AMP is not regulated as a hazardous air pollutant (HAP) under title I of the Clean Air Act. Also, it is not listed as a toxic chemical under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).

The Toxic Substances Control Act (TSCA) requires the EPA to assess and prevent any unreasonable risks to human health and the environment before a new chemical substance is introduced into commerce. Section 5 of TSCA requires manufacturers and importers to notify the EPA before manufacturing or importing a new chemical substance. This premanufacture notice, or PMN, must be submitted at least 90 days prior to the manufacture (including import) of the chemical. Under the TSCA New Chemicals Program, the EPA then performs a risk assessment on the new chemical substance to determine whether an unreasonable risk may, or will, be presented by the expected manufacture, processing, distribution in commerce, use, and disposal of the new substance. AMP is TSCA compliant, but is not a new compound and did not undergo PMN review.

The Significant New Alternatives Policy (SNAP) program is the EPA's program to evaluate and regulate substitutes for ozone-depleting chemicals. In Section 612(c) of the CAA, the agency is authorized to identify and publish lists of acceptable and unacceptable substitutes for class I or class II ozone-depleting substances. AMP is not a substitute for any of the ozone-depleting chemicals, and it has not been evaluated under the SNAP program. For the reasons stated in section III, AMP does not contribute to the depletion of the stratospheric ozone layer.

C. Climate Impacts

The EPA has previously exempted compounds with modest climate impacts from the regulatory definition of VOCs. Because AMP has a relatively short atmospheric lifetime (i.e., about 4 hours under the conventional assumption of a hydroxyl radical concentration of 3 × 106 molecules/cm3), its direct contribution to global warming should be insignificant and thus any indirect contributions to global warming through interactions with ozone and methane chemistry should be of the order of or smaller than that of ethane (in addition to any conversion of carbon in AMP to carbon dioxide).

D. Conclusion

In summary, the EPA finds that AMP is negligibly reactive with respect to its contribution to tropospheric ozone formation and thus may be exempted from EPA's definition of VOCs in 40 CFR section 51.100(s). We consider risks not related to tropospheric ozone associated with currently allowed uses of the chemical to be acceptable. AMP has not been the subject of any SNAP review. AMP's performance as a multifunctional neutralizer combined with its reduced ozone potential and favorable toxicity data makes this product a preferred one compared to more toxic chemicals used for the same purpose. In addition, there is no evidence that climate effects or other environmental impacts resulting from AMP emissions should disqualify AMP for exemption from the regulatory definition of VOCs based on the 2005 Interim Guidance criteria.

V. Direct Final Action

The EPA is responding to the petition by revising its regulatory definition of VOCs at 40 CFR 51.100(s) to add AMP to the list of compounds that are exempt from the regulatory definition of VOCs because they are negligibly reactive, on the basis that it is less reactive than ethane on a mass MIR basis. If an entity uses or produces any of this compound and is subject to EPA regulations limiting the use of VOC in a product, limiting the VOC emissions from a facility, or otherwise controlling the use of VOC for purposes related to attaining the ozone NAAQS, then this compound will not be counted as a VOC in determining whether these regulatory obligations have been met. This action may also affect whether this compound is considered a VOC for state regulatory purposes to reduce ozone formation if a state relies on the EPA's regulatory definition of VOCs. States are not obligated to exclude from control as a VOC those compounds that the EPA has found to be negligibly reactive. However, no state may take credit for controlling this compound in its ozone control strategy. For example, reduction in emissions for this compound will not be considered or counted in determining whether states have met rate of progress requirement for VOCs in SIPs for purpose of meeting the ozone NAAQS.

VI. Statutory and Executive Order ReviewsA. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993), and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). It does not contain any recordkeeping or reporting requirement.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

For purposes of assessing the impacts of this notice on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards. (See 13 CFR 121.); (2) A governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) A small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this direct final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This direct final rule removes AMP from the regulatory definition of VOCs and thereby relieves users of the compound from requirements to control emissions of the compound. We have therefore concluded that this direct final rule will relieve regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This direct final rule removes AMP from the regulatory definition of VOCs and thereby relieves users of the compound from requirements to control emissions of the compound.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This direct final rule removes AMP from the regulatory definition of VOCs and thereby relieves users of the compound from requirements to control emissions of the compound. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It would not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. This direct final rule removes AMP from the regulatory definition of VOCs and thereby relieves users from requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866. While this direct final rule is not subject to the Executive Order, the EPA has reason to believe that at higher concentrations ozone has a disproportionate effect on active children who play outdoors (62 FR 38856; 38859, July 18, 1997). The EPA has not identified any specific studies on whether or to what extent AMP may affect children's health.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use

This action is not subject to Executive Order 13211, “(66 FR 28355, May 22, 2001) because it is not a “significant energy action” under EO 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d), (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Therefore, the EPA has not considered the use of any voluntary consensus standards.

Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.

The EPA has determined that this direct final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it will not affect the level of protection provided to human health or the environment. This direct final rule removes AMP from the regulatory definition of VOCs and thereby relieves users of the compound from requirements to control emissions of the compound.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on June 25, 2014.

L. Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit Court within 60 days from the date the final action is published in the Federal Register. Filing a petition for review by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such action. Thus, any petitions for review of this action related to the exemption of AMP from the regulatory definition of VOCs must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

For reasons set forth in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:

PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANSSubpart F—Procedural Requirements1. The authority citation for Part 51, Subpart F, continues to read as follows:Authority:

§ 51.100—[Amended] 2. Section 51.100, paragraph (s)(1) introductory text, is amended by removing the words “and perfluorocarbon compounds which fall into these classes:” and adding in their place the words “2-amino-2-methyl-1-propanol; and perfluorocarbon compounds which fall into these classes:”.[FR Doc. 2014-06790 Filed 3-26-14; 8:45 am]BILLING CODE 6560-50-PENVIRONMENTAL PROTECTION AGENCY40 CFR Part 52[EPA-R03-OAR-2013-0211; FRL-9908-46-Region-3]Approval and Promulgation of Air Quality Implementation Plans; Virginia; Section 110(a)(2) Infrastructure Requirements for the 2008 Ozone National Ambient Air Quality StandardsAGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia pursuant to the Clean Air Act (CAA). Whenever new or revised National Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including, but not limited to regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure attainment and maintenance of the standards. These elements are referred to as infrastructure requirements. The Commonwealth of Virginia has made a submittal addressing the infrastructure requirements for the 2008 ozone NAAQS.

DATES:

This final rule is effective on April 28, 2014.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2013-0211. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Ellen Schmitt, (215) 814-5787, or by email at schmitt.ellen@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Summary of SIP Revision

On July 2, 2013 (78 FR 39671), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia proposing approval of Virginia's July 23, 2012 submittal to satisfy several requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS. In the NPR, EPA proposed approval of the following infrastructure elements: Sections 110(a)(2)(A), (B), (C) (for enforcement and regulation of minor sources and minor modifications), (D)(i)(II) (for visibility protection), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (relating to consultation, public notification, and visibility protection requirements), (K), (L), and (M), or portions thereof. EPA is taking separate action on the portions of section 110(a)(2)(C), (D)(i)(II), and (J) as they relate to Virginia's prevention of significant deterioration (PSD) program and on section 110(a)(2)(E)(ii) as it relates to section 128 (State Boards). Virginia did not submit section 110(a)(2)(I) which pertains to the nonattainment requirements of part D, Title I of the CAA, since this element is not required to be submitted by the three year submission deadline of section 110(a)(1), and will be addressed in a separate process. Virginia also did not include a component to address section 110(a)(2)(D)(i)(I) as it is not required in accordance with the EME Homer City decision from the United States Court of Appeals for the District of Columbia Circuit, until EPA has defined a state's contribution to nonattainment or interference with maintenance in another state. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 133 U.S. 2857 (2013). Unless the EME Homer City decision is reversed or otherwise modified by the Supreme Court, states such as Virginia are not required to submit section 110(a)(2)(D)(i)(I) SIPs until the EPA has quantified their obligations under that section. Therefore, EPA is not acting on 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

The rationale supporting EPA's proposed rulemaking action, including the scope of infrastructure SIPs in general, is explained in the NPR and the technical support document (TSD) accompanying the NPR and will not be restated here. The TSD is available online at www.regulations.gov, Docket ID Number EPA-R03-OAR-2013-0211.

II. Public Comments and EPA's Responses

EPA received three sets of comments on the July 2, 2013 proposed rulemaking action of Virginia's 2008 ozone “infrastructure” SIP. The commenters include the State of Connecticut, the State of Maryland, and the Sierra Club. A full set of these comments is provided in the docket for today's final rulemaking action. As both States and Sierra Club made a comment regarding the same subject matter of transport and the States did not make any additional comments, a summary of the three comments dealing with transport and EPA's response to all three will be addressed first followed by a summary and responses to the remainder of Sierra Club's comments.

A. “Interstate Transport” Comments

Comment: The State of Connecticut and the State of Maryland as well as the Sierra Club each assert that the ability of downwind states to attain the 2008 ozone NAAQS is substantially compromised by interstate transport of pollution from upwind states. The States assert that they have done their share to reduce in-state emissions, and EPA should ensure each upwind state addresses contribution to another downwind state's nonattainment. They state that CAA section 110(a)(1) requires states like Virginia to submit, within three years of promulgation of a new NAAQS, a plan which provides for implementation, maintenance, and enforcement of such NAAQS within the state. They also argue that, under section 110(a)(2), Virginia was required to submit a complete SIP that demonstrated compliance with the good neighbor provision of section 110(a)(2)(D)(i)(I). Connecticut argues that pursuant to section 110(k) EPA “must make a finding that Virginia has failed to submit the required SIP elements” and that such a finding creates a two-year deadline for EPA to promulgate a Federal Implementation Plan (FIP). Maryland argues that “[p]ursuant to the CAA section 110(k), the EPA must disapprove the section 110(a)(2)(D)(i)(I) SIP portion that Virginia has failed to submit.”

Both States further argue that the CAA does not give EPA discretion to approve a SIP without the good neighbor provision on the grounds that EPA would take separate action on Virginia's obligations under section 110(a)(2)(D)(i)(I). They assert that the only action available to EPA is promulgation of a FIP under section 110(c)(1) within two years. Connecticut asserts that the CAA “gives EPA no discretion to approve a SIP without the good neighbor provision on the grounds that it intends to address Virginia's section 110(a)(2)(D)(i)(I) obligations in a separate action.” Maryland further adds that if EPA believes that the EME Homer City decision prohibits EPA from disapproving the SIP before quantifying Virginia's significant contribution level, EPA should immediately promulgate Virginia's significant contribution level.

Similarly, Sierra Club argues that EPA cannot approve Virginia's Infrastructure SIP because it does not include provisions to address section 110(a)(2)(D)(i)(I), and that EPA cannot use Homer City “as an excuse to ignore its obligations under Clean Air Act 110(a)(2)(D)(i)(I).” Sierra Club argues the relevant portion of Homer City is dicta and that as this rulemaking would be appealed to the Fourth Circuit, not the D.C. Circuit; EPA is under no obligation to follow the D.C. Circuit EME Homer City decision in this rulemaking. Sierra Club concludes that EPA must find that Virginia has failed to submit a section 110(a)(2)(D)(i)(I) SIP and that EPA must issue a FIP “within two years of its disapproval.”

Response: In this rulemaking EPA is not taking any final action with respect to the provisions in section 110(a)(2)(D)(i)(I)—the portion of the good neighbor provision which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. The Commonwealth of Virginia did not make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(I) and thus there is no such submission upon which EPA could take action under section 110(k). EPA did not propose to take any action with respect to Virginia's obligations pursuant to section 110(a)(2)(D)(i)(I) and is not, in this rulemaking action, taking any such action. Further, EPA could not, as Maryland urges, act under section 110(k) to disapprove a SIP that has not been submitted to EPA. EPA also is not taking any final action with respect to findings of failure to submit for the 2008 ozone NAAQS in this notice. On January 15, 2013, EPA published findings of failure to submit with respect to the infrastructure SIP requirements for the 2008 ozone NAAQS. See 78 FR 2882. In that action, EPA explained why it was not issuing any findings of failure to submit with respect to section 110(a)(2)(D)(i)(I). Id. at 2884-85. In that action, EPA explained the opinion of the U.S. Court of Appeals for the D.C. Circuit in EME Homer City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012), cert. granted 133 U.S. 2857 (2013), “concluded that SIP cannot be deemed to lack a required submission or deemed deficient for failure to meet the 110(a)(2)(D)(i)(I) obligation until after EPA quantifies the obligation.” See 78 FR at 2884-85; see also EME Homer City, 696 F.3d at 32. Therefore, under the D.C. Circuit decision EME Homer City, states like Virginia have no obligation to make a SIP submission to address section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS until EPA has first defined the state's obligations. EPA could not, at this time, find that Virginia has failed to submit a required SIP element and as such, EPA has no obligation to make a finding of failure to submit under section 110(c)(1)(A).

EPA further disagrees with the commenters' suggestions that the Agency need not follow the D.C. Circuit opinion in EME Homer City. While the Supreme Court has agreed to review the EME Homer City decision during the Court's 2013-14 term, at this time, the D.C. Circuit's decision remains in place. EPA intends to act in accordance with the D.C. Circuit opinion in EME Homer City unless it is reversed or otherwise modified by the Supreme Court.

Further, because the EPA rule known as the Cross State Air Pollution Rule (CSAPR) reviewed by the court in EME Homer City was designated by EPA as a “nationally applicable” rule within the meaning of CAA 307(b)(1), all petitions for review of CSAPR were required to be filed in the D.C. Circuit. EPA accordingly believes the D.C. Circuit's decision in EME Homer City is also nationally applicable. As such, EPA does not intend to take any actions, even if they are only reviewable in another federal Circuit Court of Appeals, that are inconsistent with the decision of the D.C. Circuit in EME Homer City. EPA also finds no basis for one commenter's suggestion that the relevant portion of the D.C. Circuit opinion in EME Homer City opinion is dicta.

EPA also disagrees with the commenters' argument that EPA cannot approve a SIP without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve the states' SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

As such, the Agency interprets its authority under section 110(k)(3), as affording EPA the discretion to approve or conditionally approve individual elements of Virginia's infrastructure submission for the 2008 8-hour ozone NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if the SIP submission for section 110(a)(2)(D)(i)(I) were now relevant, which it is not, it would still have discretion under section 110(k) to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The commenters raise no compelling legal or environmental rationale for an alternate interpretation.

There is also no basis for the contention that EPA must issue a FIP within two years, as EPA has neither disapproved, nor found that Virginia failed to submit a required 110(a)(2)(D)(i)(I) SIP submission. Moreover, the D.C. Circuit clearly held in EME Homer City that even where EPA had issued findings of failure to submit 110(a)(2)(D)(i)(I) SIPs and/or disapproved such SIPs, EPA lacked authority to promulgate FIPs under 110(c)(1) where it had not previously quantified states' good neighbor obligations. EME Homer City, 696 F.3d at 31-37. And, as explained in this response to comment, EPA intends to comply with that decision unless it is reversed or otherwise modified by the Supreme Court. See also 78 FR 14683 (concluding that, under the D.C. Circuit opinion in EME Homer City, disapproval of a 110(a)(2)(D)(i)(I) SIP submitted by Kentucky did not start a FIP clock).

EPA notes, however, that it is working with state partners to assess next steps to address air pollution that crosses state boundaries and has begun work on a rulemaking to address transported air pollution affecting the eastern half of the United States. This rulemaking action is technically complex and must comply with the rulemaking requirements of CAA section 307(d).

In addition, EPA notes that Connecticut appears to have misread EPA's proposal. EPA did not, in the NPR, state as Connecticut appears to assume that it was approving the SIP without the good neighbor provision “on the grounds that it intends to address Virginia's section 110(a)(2)(D)(i)(I) obligations in a separate action.” In the NPR which proposed approval of portions of Virginia's infrastructure SIP for the 2008 ozone NAAQS, EPA stated that its proposed action did not include any proposed action on section 110(a)(2)(D)(i)(I) for Virginia's July 23, 2012 infrastructure SIP submission for the 2008 ozone NAAQS because this element was not required until EPA quantified the State's obligations pursuant to the EME Homer City opinion. See 78 FR 39651, 39652, (July 2, 2013). As discussed in this response to comment, EPA therefore has no obligation to find Virginia failed to satisfy its good neighbor obligations and no action is required at this time. EPA's approval of the Virginia July 23, 2012 infrastructure SIP submission for the 2008 ozone NAAQS for the portions described in the NPR was therefore appropriate.

B. Sierra Club Comments

Sierra Club made several additional comments which are provided in the docket for today's final rulemaking action and summarized below with EPA's response to each.

Comment 1: Sierra Club contends that EPA cannot approve the section 110(a)(2)(A) portion of Virginia's 2008 ozone infrastructure SIP revision because the plain language of 110(a)(2)(A) of the CAA, legislative history of the CAA, case law, EPA regulations such as 40 CFR 51.112(a), and EPA interpretations in rulemakings, require the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS violations in areas not designated nonattainment. Specifically, Sierra Club cites air monitoring reports for Charles County indicating violations of the NAAQS based on 2009-2011 and 2010-2012 design values and air quality monitoring reports for Chesterfield, Hanover, Henrico, and Stafford Counties and Hampton City indicating violations based on data from 2010-2012. The commenter alleges that these violations demonstrate that the infrastructure SIP fails to ensure that air pollution levels meet or are below the level of the NAAQS and thus the infrastructure SIP must be disapproved. Sierra Club notes that the violation of the NAAQS in Charles County based on data from 2009-2011 was known two months before Virginia submitted its ozone infrastructure SIP in July 2012 and that the data indicating violations based on data through 2012 was available in January 2013, but that Virginia failed to address the violations by enacting enforceable limits.

Furthermore, Sierra Club contends that the SIP must be disapproved because it does not include additional enforceable emission limits to address the NAAQS exceedances. Sierra Club contends that emission reductions from measures taken to meet the one-hour and 1997 8-hour ozone NAAQS, do not ensure attainment and maintenance of the 2008 ozone NAAQS. Sierra Club states that Virginia's SIP provisions which addressed the 1-hour and 1997 8-hour ozone NAAQS do not ensure Virginia will meet the stricter 2008 8-hour ozone NAAQS, especially as counties not designated nonattainment are exceeding the 2008 8-hour ozone NAAQS. The commenter also suggests that Virginia adopt specific controls that they contend are cost effective for reducing nitrogen oxides (NOX), a precursor to ozone.

Response 1: EPA disagrees with the commenter that the statute is clear on its face that infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if air quality data that became available late in the process or after the SIP was due and submitted changes the status of areas within the state. The commenter's specific arguments that the statutory language, legislative history, case law, EPA regulations, and prior rulemaking actions by EPA mandate the narrow interpretation they advocate are addressed in subsections (1) through (5) of this rulemaking action. EPA believes that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS.

As an initial matter, EPA disagrees that air quality monitoring that became available four years following promulgation of the 2008 ozone NAAQS and only shortly before the SIP was submitted for one area (Charles County for 2009-2011) and after submission for six counties (Chesterfield, Hanover, Henrico, Stafford, Hampton City, and Charles for 2010-2012) provides a basis for disapproving the Virginia ozone infrastructure SIP. States must develop SIPs based on the information they have during the SIP development process and data that becomes available near the end of that process or after that process is completed cannot undermine the reasonable assumptions that were made by the state based on the information it had available as it developed the plan. Thus, the data cited by the commenter should not be considered in determining whether the SIP should be approved. The suggestion that Virginia's ozone infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or even after the SIP was due and submitted cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period, nor to predict the air quality data in periods after development and submission of the SIPs. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate.

The commenter suggests that EPA must disapprove the Virginia ozone infrastructure SIP because the fact that areas in Virginia now have air quality data slightly above the standard proves that the infrastructure SIP is inadequate to demonstrate maintenance for those six areas. EPA disagrees with the commenter because EPA does not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that a state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.1 In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state.

1 While it is true that there may be some monitors within a state with values so high as to make a nonattainment designation of the county with that monitor almost a certainty, the geographic boundaries of the nonattainment area associated with that monitor would not be known until EPA issues final designations. Moreover, the six areas of concern to the commenter do not fit that description in any event.

EPA's interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].” In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.

For all of these reasons, EPA disagrees with the commenter that EPA must disapprove an infrastructure SIP revision if there are monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the submittal.

Moreover, as addressed in EPA's proposed approval for this rule, Virginia submitted a list of existing emission reduction measures in the SIP that control emissions of volatile organic compounds (VOCs) and NOX. Virginia's SIP revision reflects several provisions that have the ability to reduce ground level ozone and its precursors. The Virginia SIP relies on measures and programs used to implement previous ozone NAAQS. Because there is no substantive difference between the previous ozone NAAQS and the more recent ozone NAAQS, other than the level of the standard, the provisions relied on by Virginia will provide benefits for the new NAAQS; in other words, the measures reduce overall ground-level ozone and its precursors and are not limited to reducing ozone levels to meet one specific NAAQS.

EPA shares the commenter's concern regarding areas that are monitoring exceedances of the 2008 8-hour ozone NAAQS and will work appropriately with state and local agencies to address such exceedances. Further, in approving Virginia's infrastructure SIP revision, EPA is affirming that Virginia has sufficient authority to take the types of actions required by the CAA in order to bring such areas back into attainment.

1. The Plain Language of the CAA

Comment 2: The commenter states that on its face the CAA “requires I-SIPs to be adequate to prevent violations of the NAAQS.” In support, the commenter quotes the language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which commenters claimed include the maintenance plan requirement. Sierra Club notes the CAA definition of emission limit and reads these provisions together to require “enforceable emission limits on source emissions sufficient to ensure maintenance of the NAAQS.”

Response 2: EPA disagrees that section 110 is “clear on its face” and must be interpreted in the manner suggested by Sierra Club. As explained earlier in this rulemaking action, section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA interprets the requirement in section 110(a)(2)(A) that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.

The commenter makes general allegations that the six counties of concern do not have any protective measures addressing ozone pollution. EPA addressed the adequacy of Virginia's infrastructure SIP for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in the TSD accompanying the July 2, 2013 NPR and explained why the SIP includes enforceable emission limitations and other control measures necessary for maintenance of the 2008 ozone NAAQS throughout the state. For the six counties at issue, these include Virginia's enforceable emission limitations and other control measures at 9 VAC 5 Chapter 40 (Existing Stationary Sources), 9 VAC 5 Chapter 50 (New and Modified Stationary Sources), 9 VAC 5 Chapter 91 (Motor Vehicle Inspection and Maintenance in Northern Virginia), 9 VAC 5 Chapter 130 (Open Burning), and 9 VAC 5 Chapter 140 (Emissions Trading).

As discussed in the TSD accompanying the July 2, 2013 NPR, Virginia has also submitted maintenance plans, reasonable further action plans, and attainment demonstrations for the 1991 1-hour and the 1997 8-hour ozone NAAQS. Included in these plans and demonstrations are enforceable emissions limits, control measures, fees, and compliance schedules. These plans and demonstrations were prepared for the following areas: Hampton Roads, Richmond-Petersburg, Fredericksburg, Shenandoah National Park, and the Washington DC-MD-VA area. Virginia also submitted early action compact plans for the Winchester and Roanoke 1997 ozone NAAQS early action compact areas. The approved plans are listed in 40 CFR 52.2420(e).

2. The Legislative History of the CAA

Comment 3: Sierra Club cites two excerpts from the legislative history of the CAA Amendments of 1970 claiming they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Virginia. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

Response 3: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP. As provided earlier in this rulemaking action, the TSD for the proposed rule explains why the SIP includes enforceable emissions limitations for the relevant areas.

3. Case Law

Comment 4: Sierra Club also discusses several cases applying the CAA which Sierra Club claims support their contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the State”). Finally, the commenter cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

Response 4: None of the cases the commenter cites support the commenter's contention that section 110(a)(2)(A) is clear that infrastructure SIPs must include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, none of the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a challenge to an EPA action, revisions to a SIP that was required and approved as meeting other provisions of the CAA or in the context of an enforcement action, the court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of its decision.

In Train, 421 U.S. 60, a case that was decided almost 40 years ago, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The commenters do not raise any concerns about whether the measures relied on by the state in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here.2 In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was reviewing a federal implementation plan that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan. The court cited generally to section 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations but this language was not part of the court's holding in the case. The commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the commenter also quotes the court's statement that “SIPs must include certain measures Congress specified” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

2 While the commenters do contend that the State shouldn't be allowed to rely on emission reductions that were developed for the prior ozone standards (which we address above), they do not claim that any of the measures are not “emissions limitations” within the definition of the CAA.

Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

4. EPA Regulations, Such as 40 CFR 51.112(a)

Comment 5: The commenter cites to 40 CFR 51.112(a), providing that “[e]ach plan must demonstrate that the measures, rules and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” The commenter asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that “[a]lthough these regulations were developed before the Clean Air Act separated infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” The commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act. . . .” 51 FR 40656, 40656 (November 7, 1986).

Response 5: The commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS violations” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). And, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 182. The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. Id. at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOx and PM (portion)”), 51.14 (“Control strategy: CO, HC, OX and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 51.112 contains consolidated provisions that are focused on control strategy SIPs and the infrastructure SIP is not such a plan.

5. EPA Interpretations in Other Rulemakings

Comment 6: The commenter also references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the sulfur dioxide (SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, Sierra Club cites a 2013 proposed disapproval of a revision to the SO2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the State. EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the State had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO2 emissions.” EPA further stated in that proposed disapproval that the State had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.”

Response 6: EPA does not agree that the two prior actions referenced by the commenter establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the proposed Indiana rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an infrastructure SIP. The Indiana action provides even less support for the commenter's position. As an initial matter, the Indiana action is a proposal and thus cannot be presumed to reflect the Agency's final position. In any event, the review in that rule was of a completely different requirement than the 110(a)(2)(A) SIP. Rather, in that case, the State had an approved SO2 attainment plan and was seeking to remove from the SIP provisions relied on as part of the modeled attainment demonstration. EPA proposed that the State had failed to demonstrate under section 110(l) of the CAA why the SIP revision would not result in increased SO2 emissions and thus interfere with attainment of the NAAQS. Nothing in that rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS.

Comment 7: Sierra Club contends that EPA should disapprove Virginia's 2008 8-hour ozone infrastructure SIP revision with regard to the visibility component of 110(a)(2)(D)(i)(II) and (a)(2)(J) until such time that Virginia imposes best available retrofit technology (BART) for NOx and SO2 for EGUs. The commenter asserts that the substitution of the Clean Air Interstate Rule (CAIR) for BART for EGUs violates the CAA including section 169A. The commenter asserts that CAIR is not permanent and enforceable and references litigation in the D.C. Circuit related to CAIR. See North Carolina v. EPA, 531 F.3d 896, on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The commenter refers to CAIR as “vacated” and therefore not able to be considered permanent and enforceable. The commenter includes comments challenging EPA's prior rulemakings that CAIR and CSAPR were “better than BART” and states that EPA could not rely on CAIR to support its proposed approval of the visibility components of Virginia's 2008 8-hour ozone infrastructure revision. The commenter also cites several rulemakings and proposed rulemakings on attainment plan SIPs, redesignation requests, and regional haze SIPs in which EPA had stated it could not fully approve SIP revisions that relied on CAIR reductions or had stated CAIR reductions could be permanent and enforceable only in tandem with CSAPR reductions.

Response 7: EPA disagrees with the commenter regarding the approvability of Virginia's SIP for section 110(a)(2)(D)(i)(II) and (a)(2)(J). As explained in detail in EPA's NPR related to today's rulemaking action and in the TSD, EPA believes that in light of the D.C. Circuit's decision to vacate CSAPR, also known as the Transport Rule (see EME Homer City, 696 F.3d 7), and the court's order for EPA to “continue administering CAIR pending the promulgation of a valid replacement,” it is appropriate for EPA to rely at this time on CAIR to support approval of Virginia's 2008 8-hour ozone infrastructure revision as it relates to visibility. EPA has been ordered by the D.C. Circuit to develop a new rule, and to continue implementing CAIR in the meantime. Unless the Supreme Court reverses or otherwise modifies the D.C. Circuit's decision on CSAPR in EME Homer City, EPA does not intend to act in a manner inconsistent with the decision of the D.C. Circuit. Based on the current direction from the court to continue administering CAIR, EPA believes that it is appropriate to rely on CAIR emission reductions for purposes of assessing the adequacy of Virginia's infrastructure SIP revision with respect to prong 4 of section 110(a)(2)(D)(i)(II) while a valid replacement rule is developed and until submissions complying with any such new rule are submitted by the states and acted upon by EPA or until the EME Homer City case is resolved in a way that provides different direction regarding CAIR and CSAPR.

Furthermore, as neither the Commonwealth nor EPA has taken any action to remove CAIR from the Virginia SIP, CAIR remains part of the federally-approved SIP and can be considered in determining whether the SIP as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i)(II). EPA is taking final action to approve the infrastructure SIP submission with respect to prong 4 because Virginia's regional haze SIP, which EPA has approved, in combination with its SIP provisions to implement CAIR adequately prevents sources in Virginia from interfering with measures adopted by other states to protect visibility during the first planning period.3

3 Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing guidance, a limited approval results in approval of the entire SIP submittal, even of those parts that are deficient and prevent EPA from granting a full approval of the SIP revision. Processing of State Implementation Plan (SIP) Revisions, EPA Memorandum from John Calcagni, Director, Air Quality Management Division, OAQPS, to Air Division Directors, EPA Regional Offices I-X, September 7, 1992, (1992 Calcagni Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. Therefore, EPA believes it is appropriate to approve Virgina's 2008 ozone NAAQS infrastructure SIP for section 110(a)(2)(D)(i)(II) as it meets the requirements of that section despite the limited approval status of Virginia's regional haze SIP.

EPA disagrees with the commenter that the CAA does not allow states to rely on an alternative program such as CAIR in lieu of source-specific BART. EPA's regulations allowing states to adopt alternatives to BART that provide for greater reasonable progress, and EPA's determination that states may rely on CAIR to meet the BART requirements, have been upheld by the D.C. Circuit as meeting the requirements of the CAA. In the first case challenging the provisions in the regional haze rule allowing for states to adopt alternative programs in lieu of BART, the court affirmed EPA's interpretation of CAA section 169A(b)(2) as allowing for alternatives to BART where those alternatives will result in greater reasonable progress than BART. Center for Energy and Economic Development v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005) (finding reasonable EPA's interpretation of CAA section 169(a)(2) as requiring BART only as necessary to make reasonable progress). In the second case, Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006), the court specifically upheld EPA's determination that states could rely on CAIR as an alternative program to BART for EGUs in the CAIR-affected states. The court concluded that EPA's two-pronged test for determining whether an alternative program achieves greater reasonable progress was a reasonable one and also agreed with EPA that nothing in the CAA required EPA to “impose a separate technology mandate for sources whose emissions affect Class I areas, rather than piggy-backing on solutions devised under other statutory categories, where such solutions meet the statutory requirements.” Id. at 1340.

EPA also notes that CAIR has not been “vacated” as stated in Sierra Club's comment. As mentioned in EPA's TSD, CAIR was ultimately remanded by the D.C. Circuit to EPA without vacatur, and EPA continues to implement CAIR. EPA further notes that all of the rulemaking actions and proposed rulemaking actions cited by the commenter which discussed limited approvability of SIPs or redesignations due to the status of CAIR were issued by EPA prior to the vacatur of CSAPR when EPA was implementing CSAPR. Since the vacatur of CSAPR in August 2012 and with continued implementation of CAIR per the direction of the D.C. Circuit in EME Homer City, EPA has approved redesignations of areas to attainment of the 1997 fine particulate matter (PM2.5) NAAQS in which states have relied on CAIR as an enforceable measure. See 77 FR 76415, December 28, 2012 (redesignation of Huntington-Ashland, West Virginia for 1997 PM2.5 NAAQS, which was proposed 77 FR 68076, November 15, 2012); 78 FR 59841, September 30, 2013 (redesignation of Wheeling, West Virginia for 1997 PM2.5 NAAQS, which was proposed 77 FR 73575, December 11, 2012); and 78 FR 56168, September 12, 2013 (redesignation of Parkersburg, West Virginia for 1997 PM2.5 NAAQS, which was proposed 77 FR 73560, December 11, 2012).

More fundamentally, EPA disagrees with the commenter that the adequacy of the BART measures in the Virginia regional haze SIP is relevant to the question of whether the Commonwealth's SIP meets the requirements of section 110(a)(2)(D)(i) of the CAA with respect to visibility. EPA interprets the visibility provisions in this section of the CAA as requiring states to include in their SIPs measures to prohibit emissions that would interfere with the reasonable progress goals set to protect Class I areas in other states. The regional haze rule includes a similar requirement. See 40 CFR 51.308(d)(3). EPA notes that on June 13, 2012, EPA determined that Virginia's regional haze SIP adequately prevents sources in Virginia from interfering with the reasonable progress goals adopted by other states to protect visibility during the first planning period. See 77 FR 35287. See also 77 FR 3691, 3709 (January 25, 2012) (proposing approval of Virginia's regional haze SIP). As EPA's review of the Virginia regional haze SIP explains, the Commonwealth relied on enforceable emissions reductions already in place to address the impacts of Virginia on out-of-state Class I areas. The question of whether or not CAIR satisfies the BART requirements has no bearing on whether these measures meet the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility.

In addition, with regard to the visibility protection aspect of section 110(a)(2)(J), as discussed in the TSD accompanying the NPR for this rulemaking action, EPA stated that it recognizes that states are subject to visibility and regional haze program requirements under part C of the Act. In the establishment of a new NAAQS such as the 2008 ozone NAAQS, however, the visibility and regional haze program requirements under part C of Title I of the CAA do not change and there are no applicable visibility obligations under part C “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. Therefore, EPA appropriately proposed approval of Virginia's 2008 8-hour ozone infrastructure SIP revision for section 110(a)(2)(J). As discussed for section 110(a)(2)(D)(i)(II) earlier in this rulemaking action, and in the TSD for this rulemaking action, Virginia has submitted SIP revisions to satisfy the requirements of part C of Title I of the CAA.4 In summary, EPA believes that it appropriately proposed approval of Virginia's infrastructure SIP revision for the 2008 ozone NAAQS for the structural visibility protection requirements in 110(a)(2)(D)(i)(II).

4 The TSD is available online at www.regulations.gov, Docket ID Number EPA-R03-OAR-2013-0211.

Comment 8: Sierra Club states that EPA should disapprove Virginia's 2008 8-hour ozone infrastructure SIP revision under CAA sections 110(a)(2)(D)(i)(II) (visibility prong) and 110(a)(2)(J) because, as the commenter asserts, Virginia failed to submit its “5-year Regional Haze Progress Report” pursuant to 40 CFR 51.308(g) by the required date. Sierra Club references a July 17, 2008 SIP submittal from Virginia as the basis for determining when the five year progress report for regional haze was due.

Response 8: EPA disagrees with the commenter that Virginia's five year progress report was overdue at the time EPA proposed to approve Virginia's infrastructure SIP for the 2008 ozone NAAQS. On July 2, 2013, the date of the proposed approval of Virginia's SIP, Virginia was under no obligation to submit a five year progress report to meet the requirements in 40 CFR 51.308(g). On October 4, 2010, the Commonwealth of Virginia submitted as a SIP revision a comprehensive regional haze plan consisting of the following: Reasonable progress goals, calculations of baseline and natural visibility conditions, a long-term strategy for regional haze, BART determinations, and a monitoring strategy as required by 40 CFR 51.308(d) and (e). Previously, on July 17, 2008, Virginia had submitted to EPA the first of five SIP revisions containing a permit and a BART determination addressing 40 CFR 51.308(e) for the control of visibility-impairing emissions from a BART-eligible source in Virginia. Virginia submitted three additional SIP revisions containing permits and BART determinations addressing 40 CFR 51.308(e) on March 6, 2009, January 14, 2010, and November 19, 2010. A May 6, 2011 SIP revision also included a permit for a source for Virginia's reasonable progress goals required by 40 CFR 51.308(d). Although the July 2008, March 2009, January 2010, November 2010, and May 2011 SIP revision submittals from Virginia included BART determinations or a permit for reasonable progress goals for specific sources in Virginia as required by 40 CFR 51.308(e) (and 40 CFR 51.308(d) for one source in the May 2011 SIP revision), EPA does not believe these five submittals were comprehensive regional haze SIP submittals intended to meet the requirements of 40 CFR 51.308(d) as well as (e). However, the October 4, 2010 SIP submittal from Virginia did contain such a comprehensive regional haze plan addressing reasonable progress goals, visibility conditions, a long-term strategy for regional haze, and a monitoring strategy as required by 40 CFR 51.308(d).

EPA believes the appropriate regional haze SIP submission which Virginia should be evaluating for its reasonable progress as required by 40 CFR 51.308(g) is the October 4, 2010 submission. Consequently, Virginia's five year progress report for 40 CFR 51.308(g) is not due until October 4, 2015, five years from the first regional haze SIP submittal which comprehensively addressed 40 CFR 51.308(d) and (e).

Finally, EPA notes that on November 8, 2013 Virginia submitted its five year progress report for 40 CFR 51.308(g) significantly in advance of its October 4, 2015 due date. On February 11, 2014, EPA signed a separate rulemaking action proposing approval of that report. EPA's review of emissions data from Virginia's five year progress report shows that emissions of the key visibility-impairing pollutant for the southeast, SO2, continued to drop from 428,070 tons per year (tpy) in 2002 to 268,877 tpy in 2007 to 115,436 tpy in 2011. The emissions inventories also show similar substantial declines in other pollutants, particularly NOX, between 2007 and 2011.

In summary, EPA believes that it appropriately proposed approval of Virginia's infrastructure SIP revision for the 2008 ozone NAAQS for the structural requirements in 110(a)(2)(D)(i)(II) because the progress report was not yet due on the date of EPA's publication of the proposal. Therefore, EPA finds Virginia has met the basic structural visibility protection requirements in 110(a)(2)(D)(i)(II). Additionally, as stated previously, the visibility and regional haze program requirements under part C of Title I of the CAA do not change with the establishment of a new NAAQS such as the 2008 ozone NAAQS, and there are no applicable visibility obligations under part C “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. Therefore, Virginia's obligation to submit a progress report in accordance with 40 CFR 51.308(g) is unrelated to 110(a)(2)(J), and EPA finds Virginia's 2008 ozone infrastructure SIP meets the obligations for 110(a)(2)(J).

While considering this comment, EPA became aware of an inadvertent error in the table contained in 40 CFR 51.2420(e) which incorrectly referred to Virginia's SIP submission on January 14, 2010 as January 14, 2012. EPA is correcting that error through this rulemaking action. EPA is also clarifying in the table in 40 CFR 51.2420(e) that Virginia's regional haze SIP submission was the October 4, 2010 submission as amended by the May 6, 2011 SIP submission. EPA is correcting the table to indicate that the other four SIP submissions pertained to BART determinations as required by 40 CFR 51.308(e). For further clarification, EPA is adding to the table in 40 CFR 51.2420(d) the BART permits submitted on July 17, 2008, March 6, 2009, January 14, 2010, and November 19, 2010 and the May 6, 2011 permit implementing requirements for reasonable progress as these permits are source-specific requirements which were previously approved and incorporated into the Virginia SIP but were inadvertently not added to the table in 40 CFR 51.2420(d) when approved with the regional haze SIP. See 77 FR 35287.

III. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its PSD, NSR, or Title V program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

EPA is approving the following infrastructure elements or portions thereof of Virginia's SIP revision: Section 110(a)(2)(A), (B), (C) (for enforcement and regulation of minor sources and minor modifications), (D)(i)(II) (for visibility protection), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (relating to consultation, public notification, and visibility protection requirements), (K), (L), and (M), or portions thereof as a revision to the Virginia SIP. EPA is taking separate rulemaking action on the portions of section 110(a)(2)(C), (D)(i)(II), and (J) as they relate to Virginia's PSD program and section 110(a)(2)(E)(ii) as it relates to section 128 (State Boards). This rulemaking action does not include section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, since this element is not required to be submitted by the three year submission deadline of section 110(a)(1), and will be addressed in a separate process. This rulemaking action also does not include proposed action on section 110(a)(2)(D)(i)(I), because this element, or portions thereof, is not required to be submitted by a state until the EPA has quantified a state's obligations. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 133 U.S. 2857 (2013). In addition, EPA is clarifying the table at 40 CFR 52.2420(e) to indicate the date of the regional haze SIP submission and dates of supplemental SIP submissions for BART provisions.

V. Statutory and Executive Order ReviewsA. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 27, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS for the Commonwealth of Virginia, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS1. The authority citation for part 52 continues to read as follows:Authority:

42 U.S.C. 7401 et seq.

Subpart VV—Virginia2. Section 52.2420 is amended by:a. In paragraph (d), adding the entries for Georgia Pacific Corporation, MeadWestvaco Corporation, and O-N Minerals Facility at the end of the table.b. In paragraph (e):i. Revising the table entry for Regional Haze Plan,ii. Adding an entry for Regional Haze Plan Supplements and BART determinations after the existing entry for Regional Haze Plan,iii. Adding an entry for Section 110(a)(2) Infrastructure Requirements for the 2008 Ozone NAAQS at the end of the table.

The Environmental Protection Agency (EPA) is taking direct final action to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. The revision consists of a second limited maintenance plan for the carbon monoxide (CO) Pittsburgh Area (“the Pittsburgh Area” or “the Area”) in Allegheny County, formerly designated as a CO nonattainment area. The maintenance plan ensures maintenance of the CO national ambient air quality standard (NAAQS) in the Pittsburgh Area for a second 10-year period after redesignation of the Area from nonattainment to attainment, through year 2022. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This rule is effective on May 27, 2014 without further notice, unless EPA receives adverse written comment by April 28, 2014. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0248 by one of the following methods:

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2012-0248. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105 and at the Allegheny County Health Department, Bureau of Environmental Quality, Division of Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 15201.

FOR FURTHER INFORMATION CONTACT:

Emlyn Vélez-Rosa, (215) 814-2038, or by email at velez-rosa.emlyn@epa.gov.

SUPPLEMENTARY INFORMATION:

On July 18, 2011, Pennsylvania Department of Environmental Protection (PADEP) submitted, on behalf of Allegheny County Health Department (ACHD), a revision to the Pennsylvania SIP, which was supplemented on November 26, 2013. The SIP revision ensures maintenance of the CO NAAQS in the Pittsburgh Area for a second ten-year period after redesignation, through year 2022.

CO is a colorless, odorless gas emitted from combustion processes. Nationally and, particularly in urban areas, the majority of CO emissions to ambient air come from mobile sources. CO can cause harmful health effects by reducing oxygen delivery to the body's organs (like the heart and brain) and tissues. At extremely high levels, CO can cause death.

EPA initially established the CO NAAQS on April 30, 1971 (36 FR 8186). The primary standards, protective of public health, were set at 9 parts per million (ppm) as an 8-hour average, and 35 ppm, as a 1-hour average, neither to be exceeded more than once per year. Later in 1971, EPA set the secondary standards identical to the primary standards for protection of the public welfare. See 40 CFR 50.8. In a review of the standards completed in 1985 (50 FR 37484, September 13, 1985), EPA retained the primary standard, but revoked the secondary standard due to lack of evidence of direct adverse effect on public welfare at or near ambient concentrations. Although the air quality criteria have changed over the past two decades, the CO primary standard has been retained without revision.

On September 12, 1978 (43 FR 40513), EPA designated for the first time portions of Allegheny County as a CO nonattainment area, referred to as the Pittsburgh Area. The Pittsburgh Area was defined to include the high traffic density areas within the Central Business District of Allegheny County and certain other high traffic density areas. The Central Business District is defined as the area enclosed by the Allegheny River, the Monongahela River, and 579 interstate highway, while “the other high traffic density areas” are defined as the Oakland neighborhood of Pittsburgh, Pennsylvania.

As part of the 1990 CAA Amendments, a provision was added under section 186(a) which authorized EPA to classify nonattainment areas according to the degree of severity of the nonattainment problem. Specifically, CAA section 186(a)(1) provides that each area designated nonattainment for CO should be classified at the time of such designation as “Moderate” (9.1-16.4 ppm) or “Serious” (16.5 ppm and above) based on the design value of the area. Additionally, under section 107(d)(a)(C), at the date of enactment of the 1990 CAA Amendments, all areas of the country were designated with respect to ozone and CO in accordance with the pre-enactment designations by operation of the law.

On November 6, 1991 (56 FR 56694), EPA made final designations and classifications for all areas in the country for all the six criteria pollutants. The designations and classifications for CO (post-enactment of 1990 CAA Amendments) were based on quality assured air monitoring data for years 1988-1989. The Pittsburgh Area maintained its pre-enactment designation as a CO nonattainment area by operation of law. In this designation process, EPA determined that the Pittsburgh Area was a “nonclassifiable” area with respect CO NAAQS, based on the fact that the 1988-1989 air quality design values for the Area were below the lowest CO nonattainment classification of “Moderate” (below 9.1 ppm).

B. Compliance With the CO NAAQS

A monitor is meeting the CO NAAQS if over a 2-year period the second-highest 1-hour value is less than or equal to 35 ppm, and the second-highest, non-overlapping 8-hour value is less than or equal to 9 ppm. These calculated values are referred as the 1-hour and the 8-hour design value, respectively. A design value is calculated to compare to the NAAQS and determine compliance. The CO design values are usually discussed in terms of the 8-hour CO NAAQS, rather than the 1-hour NAAQS, because the 8-hour NAAQS is typically the standard of concern. The design value of an area is the highest site-specific design value of the monitors located within the area. A CO nonattainment area is considered for redesignation if the design value of the Area is below the standards, that is, if there are no violations of the CO NAAQS for two consecutive years. The method for calculating CO design values is presented in detail in EPA's June 18, 1990 memorandum, “Ozone and Carbon Monoxide Design Value Calculations.”

C. Redesignation to Attainment and Maintenance Plan

EPA may redesignate areas to attainment if sufficient monitoring data are available to warrant such change and the area meets the criteria contained in section 107(d)(3)(E) of the CAA. These criteria include, among others, a full approval of a maintenance plan that covers at least 10 years after redesignation, and meets the requirements of section 175A of the CAA. In addition, section 175A of the CAA require states to submit a revision to the maintenance plan eight years after redesignation to provide for maintenance of the NAAQS for 10 years following the end of the first 10-year maintenance period. To address potential future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for implementation adequate to assure prompt correction of any air quality problems.

On August 17, 2001, the Commonwealth submitted to EPA a redesignation request and a maintenance plan for the Pittsburgh Area for the CO NAAQS. EPA allowed the Commonwealth to develop a “limited maintenance plan” (LMP) for the Pittsburgh Area in addressing the maintenance plan requirements, and thus meeting the applicable requirements for redesignation. According to EPA's October 6, 1995 guidance “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas,” the LMP option is only available to nonclassifiable CO nonattainment areas with design values at or below the 85 percent (%) of the level of the 8-hour CO NAAQS, or 7.65 ppm. The LMP option allows the areas meeting this requirement to submit a less rigorous maintenance plan than generally required for the CO NAAQS. Since the Pittsburgh Area was designated as a “nonclassifiable” nonattainment area and the Area's 8-hour design value at the time of redesignation was 3.9 ppm, based on 1998-1999 quality assured air monitoring data, EPA concurred with the Commonwealth's determination of submitting an LMP for the Area. On November 12, 2002 (67 FR 68521), EPA granted the Commonwealth's redesignation request and approved as a SIP revision the maintenance plan for the Pittsburgh Area. The SIP revision ensured maintenance of the standard until January 2013.

On July 18, 2011, the Commonwealth submitted as a SIP revision a second 10-year CO maintenance plan for the Pittsburgh Area. In recognition of the continuing record of monitoring data showing ambient CO 8-hour concentrations in the Pittsburgh Area well below 7.65 ppm, ACHD once more chose the LMP option for the development of this second maintenance plan. Further discussion of the maintenance plan requirements and the LMP option is provided in section II of this rulemaking action.

II. EPA's Requirements

Section 175A defines the general framework of a maintenance plan. The maintenance plan will constitute a SIP revision and must provide for maintenance of the relevant NAAQS for at least 10 years after redesignation. Section 175A further states that the plan shall contain such additional measures, if any, as may be necessary to ensure such maintenance. In addition, the maintenance plan should contain such contingency measures as EPA deems necessary to ensure prompt correction or any violation of the NAAQS.

For nonclassifiable CO areas seeking redesignation to attainment whose design value at the time of redesignation is 85 percent or less than the 8-hour CO NAAQS, or 7.65 ppm, a state may choose to submit a less rigorous maintenance plan than generally required. This option is termed a LMP. EPA believes that the full maintenance plan requirements do not need to be applied to these areas because they have achieved air quality levels well below the standard without application of control measures required by the CAA for moderate and serious nonattainment areas. Also, these areas do not have either a recent history of monitored violations of the CO NAAQS or a long prior history of monitored air quality problems for CO. Therefore, EPA believes that for a limited maintenance area, the air quality along with the continued applicability of the prevention of significant deterioration (PSD) permitting requirements, any control measures already in the SIP, and Federal measures, should provide adequate assurance of maintenance over the10-year maintenance period. The same applies for areas submitting their second maintenance plans.

To qualify for the LMP option, the CO design value for the area, based on the eight consecutive quarters (two years of data) used to demonstrate attainment must be at or below 7.65 ppm for the 8-hour CO NAAQS. Additionally, the design value for the area must continue to be at or below the 7.65 ppm for the 8-hour CO NAAQS until the time of EPA's final action. According to EPA's October 6, 1995 guidance “Limited Maintenance Plan Option for Non-classifiable CO Nonattainment Areas,” a LMP submittal must include: An attainment emissions inventory, a maintenance demonstration, a verification of continued attainment, contingency measures, and transportation conformity determination.

As for any maintenance plan, the state should develop an attainment emissions inventory to identify the level of emissions in the area which is sufficient to attain the NAAQS. This inventory should be consistent with EPA's most recent guidance on emissions inventories for nonattainment areas available at the time and should include the emissions during the time period associated with the monitoring data showing attainment. Emissions of CO are generally expected to be the highest during the winter season. Thus, for CO nonattainment areas, the inventory should be based on actual “typical winter day” emissions for the time period associated with the monitoring data showing attainment of the standard. For more information on developing seasonal CO emissions inventories, refer to EPA's guidance documents “Emissions Inventory Requirements for Carbon Monoxide State Implementation Plans” (EPA-450/4-91-011, March 1991) and “Procedures for the Preparation of Emissions Inventories for Carbon Monoxide and Precursors of Ozone; Volume I” (EPA-450/4-91-016, May 1991).

In LMP, the maintenance demonstration requirement is considered to be satisfied if the monitoring data show that the area is meeting the air quality criteria for a limited maintenance area, 7.65 ppm. The design value requirement is expected to provide adequate assurance of maintenance over the 10-year period. The maintenance demonstration does not require the state to project emissions over the maintenance period. In LMP, to verify the attainment status of the area over the maintenance period, the state must show continuous operation of an appropriate EPA-approved air quality monitoring network, in accordance with 40 CFR part 58.

As for any maintenance plan, the state is required to adopt contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area. In order for the maintenance plan to be approved, a state is not required to have full adopted contingency measures that will take effect without further action by the state; however, the contingency plan is considered to be an enforceable part of the SIP and should ensure that the contingency measures are adopted expediently once they are triggered. The plan should clearly identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the state. As necessary, the state should also identify specific indicators, or triggers, which will be used to determine when the contingency measures need to be implemented.

Transportation conformity is required under section 176(c) of the CAA to ensure that Federally supported highway, transit projects, and other activities are consistent with (conform to) the purpose of the SIP. The CAA requires Federal actions in nonattainment and maintenance areas to “conform to” the goals of the SIP. This means that such actions will not cause or contribute to violations of a NAAQS; worsen the severity of an existing violation; or delay timely attainment of any NAAQS or any interim milestone. EPA has established criteria and procedures for Federal agencies to follow in determining conformity of their actions. EPA's rule governing transportation plans and Federally supported highway, transit projects, and other activities is referred to as the Transportation Conformity Rule (See 40 CFR part 93, subpart A), and EPA's rule governing all other types of Federal agency actions is referred to as the General Conformity Rule (See 40 CFR part 93, subpart B).

Under the Transportation Conformity Rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, EPA, Federal Highway Administration (FHWA), and Federal Transit Administration (FTA) to demonstrate that their metropolitan transportation plans and transportation improvement plans conform to applicable SIPs. This is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (MVEBs) contained in a SIP. While EPA's LMP option does not exempt an area from the need to affirm conformity, the area may demonstrate conformity without submitting an emissions budget. Under the LMP option, the emissions budgets are essentially not constraining for the length of the maintenance period, because it is unreasonable to expect that the qualifying area will experience so much growth in that period that a violation of the CO NAAQS would result. For this reason, any Federal actions requiring conformity determinations under the Transportation Conformity Rule could be considered to satisfy the “budget test,” required in 40 CFR 93.158(a)(5)(i)(A), 93.118, 93.119, and 93.120. While not subject to the budget test, the limited maintenance areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A.

III. Summary of SIP Revision

On July 18, 2011, PADEP submitted, on behalf of ACHD, a SIP revision which was then supplemented on November 26, 2013. The SIP revision consists of the second 10-year update to the CO NAAQS maintenance plan for the Pittsburgh Area, as required by CAA section 175A(b). The July 18, 2011 submission included a maintenance demonstration, a verification of continued attainment, and a contingency plan. The November 26, 2013 supplemental SIP revision included the attainment emissions inventory. The submittals also include appendices that explain the methodology used for developing emissions inventories, a technical support document, and evidence of public notice, public hearing, response to comments, and adoption of the plan. The maintenance plan also carries forward essentially the same contingency plan as contained in the initial maintenance plan. A more detailed summary of Pennsylvania's SIP submittal may be found in EPA's Technical Support Document (TSD) for this rulemaking action, which is available online at www.regulations.gov, Docket number EPA-R03-OAR-2012-0248.

IV. EPA's EvaluationA. Limited Maintenance Plan Eligibility

Monitoring data shows that the Pittsburgh Area continues to attain the CO NAAQS. Table 1 presents the historic CO 8-hour design values (i.e., the second highest 8-hour average CO levels) for the CO monitoring sites in the Area over the 1988-2013 period, as recorded in EPA's Air Quality System (AQS) and included in the submittal. As shown, the second highest 8-hour CO average concentrations recorded at all monitoring stations in the Pittsburgh Area have remained below 7.65 ppm since 1994. In addition, ACHD reported that the 1-hour CO NAAQS has not been violated in the Pittsburgh Area since 1980, and has been below 15 ppm since 1988. Thus, monitoring data show that the Pittsburgh Area continues to be eligible for the LMP option.

Table 1—Pittsburgh Area's CO Second Highest 8-Hour Average Concentrations During 1988-2013, in ppmYearOakland a

(42-003-0026)

Forbes Avenue at Grant Street

(Courthouse)

(42-003-0038)

Gateway Center Subway

Entrance

(Point) b

(42-003-0052)

Flag Plaza

(Bedford

Avenue) b

(42-003-0031)

19888.46.66.519896.57.86.719906.98.16.519915.06.26.619927.77.86.719934.86.25.219945.67.56.819954.35.93.819965.04.83.919972.53.92.919984.93.119994.03.120003.52.620013.420022.920033.52.220042.51.920052.31.820062.11.820073.51.320081.61.320091.51.320101.71.220111.61.420121.71.52013c1.51.4Source: Pennsylvania's July 18, 2011 SIP submittal and EPA's January 9, 2014 AQS Reports AMP450.a The CO monitor at the Oakland site (AQS ID: 42-003-0026) was terminated in October 1997, as approved by EPA.b EPA approved the removal of the CO monitor at the Gateway Center Subway Entrance (Point) (AQS ID: 42-003-0052) in May 2000 and its relocation to the Flag Plaza (AQS ID: 42-003-0031) near the Civic Arena, which started operating in 2003.c Air quality monitoring data for 2013 is preliminary.B. Attainment Emissions Inventory

For the CO maintenance plan, ACHD developed a 2008 attainment emissions inventory to identify the level of actual emissions in the Pittsburgh Area that is sufficient for the Area to continue to attain the CO NAAQS. The Pittsburgh Area's CO attainment inventory is based on the latest available planning assumptions for 2008, reflecting typical winter day CO emissions for the Area. ACHD selected the 2008 year for its attainment emissions inventory because it contained at the time of submittal the most current and comprehensive emissions estimates that were representative of actual emissions in Allegheny County, and because during this time the air quality was showing maintenance of the CO NAAQS in the Area. The 2008 emissions inventory is based on EPA's 2008 National Emissions Inventory (NEI) (Version 2, April 10, 2012) for the months of January, February and December, and seasonal adjustment factors were applied as necessary.

The 2008 attainment inventory contains CO typical winter day emissions estimates of point, area, mobile onroad and mobile nonroad sources in the Area. The primary source of CO emissions in the Pittsburgh Area is the onroad (highway) sources, contributing to 54% of total CO emissions of the Area. Table 2 provides a summary of the 2008 attainment inventory submitted with the maintenance plan. For a more detailed evaluation of the 2008 emissions inventory, see EPA's TSD dated February 4, 2014 for this rulemaking action, which is available online at www.regulations.gov, Docket number EPA-R03-OAR-2012-0248.

Under the LMP option, there is no requirement to project emissions over the 10-year maintenance period for the Pittsburgh Area, as long as the Area continues to have CO air quality at or below 7.65 ppm. The monitoring data presented in Table 1 show that the Pittsburgh Area has historically measured and continues to measure concentrations below 7.65 ppm. The continuous downward trend in CO monitoring data in the Area has demonstrated that air quality improvements can be attributed to permanent, enforceable reductions of CO emissions. In addition, EPA acknowledges that Allegheny County has a SIP-approved PSD permitting program (78 FR 13493, February 18, 2013), which prevents increase of CO emissions from construction or modification of major stationary sources. EPA believes that the LMP eligibility together with the continuation of existing CO emissions control programs, sufficiently and adequately demonstrate that the Pittsburgh Area will maintain the CO NAAQS through the second 10-year maintenance period and beyond.

Although not required, ACHD included a maintenance demonstration as part of its second maintenance plan to show maintenance of the CO NAAQS during the second 10-year period for the Pittsburgh Area. ACHD used projected inventories to show that the Pittsburgh Area continues to remain in attainment and developed projected inventories for an interim year of 2013 and a maintenance end year of 2022. The projected 2013 and 2022 emissions inventories include typical winter day CO emissions estimates only for the onroad sources in the Pittsburgh Area. As mentioned earlier in this rulemaking action, this sector constitutes the primary emissions source category in the Pittsburgh Area, thus emissions reductions from this source category should be sufficient to demonstrate maintenance of the CO NAAQS for the Area. The projected 2013 and 2022 onroad emissions inventories were developed with EPA's latest highway emissions model at the time of submittal, MOVES2010a,1 in accordance with EPA's “Technical Guidance on the Use of MOVES2010a for Emission Inventory Preparation in State Implementation Plans and Transportation Conformity.”

1 MOVES2010 is a computer model designed by EPA to estimate air pollution emissions and emissions inventories of various pollutants and precursors from on-road mobile sources for SIP and transportation conformity purposes. MOVES2010 was designed to replace the previous emissions model, MOBILE6.2, which was released in 2004 (69 FR 28830). MOVES2010 was released on March 2, 2010 (75 FR 9411), while MOVES2010a, a minor revision to enhance model performance, was released subsequently on September 8, 2010. ACHD used MOVES2010a in developing the projected emissions inventories.

ACHD used growth rates based on 2008 local traffic data and socioeconomic forecasts to project traffic parameters to 2013 and 2022 data. Daily and monthly seasonal factors were used to adjust traffic data to a typical winter day. The projected inventories take into account control measures which were in place in 2008 and are expected to be in place throughout 2022 for Allegheny County, which include: The National Low Emission Vehicle Program (NLEV) and Federal Tier II Low Sulfur Program, emissions standards for medium and heavy duty vehicles in 2002, 2004, 2007, and 2011, Stage II and Onboard Refueling Vapor Recovery (ORVR), and the Pennsylvania Clean Vehicles (PCV) Program (PaCode, Title 25, Chapter 126) that incorporates the California Low Emission Vehicle Program (CA LEVII).

After thorough review of the methodology and data assumptions used by ACHD, EPA finds that the 2013 and 2022 emissions inventories were developed in conformance with EPA's guidance, and therefore, are approvable as part of the maintenance demonstration. A summary of the projected onroad CO emissions inventories for the Pittsburgh Area is provided in Table 3. A more detailed evaluation and EPA's rationale for approving the 2013 and 2022 inventories may be found in EPA's TSD for this rulemaking action, which is available online at www.regulations.gov, Docket number EPA-R03-OAR-2012-0248.

The purpose of the maintenance demonstration is to show that future CO emissions will remain at or below the 2008 attainment emissions levels for the Pittsburgh Area through the 2022 maintenance plan end year. Table 4 provides a comparison of the CO emissions inventories for the Pittsburgh Area for the 2008 attainment year, the 2013 interim year, and the 2022 maintenance plan end year. Despite the projected increase in VMT (see Table 3) in the Area, the inventories show that the CO emissions between 2008 and 2022 for the Area are projected to be reduced by 15 percent, due to the implementation of the vehicle control measures in Allegheny County. EPA finds that the maintenance demonstration shows that the Pittsburgh Area will continue to maintain the CO NAAQS during the second maintenance period, throughout 2022.

Table 4—Comparison of the 2008, 2013, and 2022 CO Typical Winter Day Emissions Inventories for Onroad Sources in the Pittsburgh Area, in tpdEmissions of onroad sources200820132022Emissions reductions2008-20132008-2022396.38394.53336.271.8560.11D. Monitoring Network and Verification of Continued Attainment

In accordance with 40 CFR part 58, ACHD operates and maintains an EPA-approved CO monitoring network in the Pittsburgh Area, in order to verify attainment of the CO NAAQS and ensure the need to trigger contingency measures. Currently, the monitoring network consists of two monitoring sites: The Forbes Avenue and Grant Street site (AQS ID: 42-003-0038) and the Flag Plaza site (AQS ID: 42-003-0031), whose data is eligible for comparison to the CO NAAQS.

EPA believes ACHD's current CO monitoring network is adequate to verify continued attainment of the CO NAAQS in the Pittsburgh Area. ACHD has committed to continue maintaining a CO monitoring network in accordance with EPA's requirements.

E. Contingency Plan

The Pittsburgh Area's second CO maintenance plan carries forward the same contingency provisions that were included in the first maintenance plan and previously approved by EPA. As a triggering event for implementation of the contingency measures of this plan, a verified ambient CO concentration for an 8-hour period over the 8-hour CO NAAQS, or 9.00 ppm, must be recorded at least twice at one monitor station from November to February. In the event of a violation of the 8-hour CO NAAQS, a “vehicle idling restriction” will be implemented as a contingency measure. The vehicle idling restriction is applicable from November to February throughout Allegheny County and consists of limiting to five minutes the amount of time that a gasoline engine vehicle is permitted to idle. This restriction will have the following exceptions: The need for heating and powering of refrigeration systems on trucks, operation of emergency vehicles and vehicles that are motionless due to traffic conditions beyond operator's control. Three (3) months after ACHD records a violation or once EPA notifies ACHD that this contingency measure must be implemented, ACHD will adopt within 12 months the vehicle idling restriction as a regulation. The regulation will be implemented within 8 months after adoption. In the future, ACHD may request EPA to consider the approval of alternative contingency measures by providing a demonstration that the alternative measures will provide an air quality and public health benefit equal to or greater than that resulting from the implementation of the idling restriction. EPA finds this contingency measure approvable for purposes of satisfying CAA section 175A.

F. Transportation Conformity

ACHD did not submit any MVEBs with the Pittsburgh Area's CO second maintenance plan. However, EPA believes that the second maintenance plan demonstrates that it is unreasonable to expect that the Area would experience enough growth in motor vehicle (onroad) emissions for a violation of the CO NAAQS to occur, and on that basis, EPA is proposing to approve this plan for transportation conformity purposes. In accordance with the Transportation Conformity Rule, after EPA's approval of this limited maintenance plan, there will be no requirement for ACHD to satisfy the regional emissions analysis with respect to CO under 40 CFR 93.118 and/or 40 CFR 93.119 in determining the conformity of transportation plans, programs and projects in the Pittsburgh Area. See 40 CFR 93.109(e).

V. Final Action

EPA finds that the Pittsburgh Area second CO maintenance plan concurs with EPA's guidance for limited maintenance plans and thus, satisfies the requirements of CAA section 175A. EPA is approving as an update to the Pennsylvania SIP the Pittsburgh Area CO second maintenance plan, which was submitted as a SIP revision by the Commonwealth of Pennsylvania on July 18, 2011 and supplemented on November 26, 2013. The plan demonstrates maintenance of the CO NAAQS in the Pittsburgh Area for a second 10-year period after redesignation, through year 2022.

EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on May 27, 2014 without further notice unless EPA receives adverse comment by April 28, 2014. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

VI. Statutory and Executive Order ReviewsA. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 27, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action, approving the Pittsburgh Area's CO second maintenance plan, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS1. The authority citation for part 52 continues to read as follows:Authority:

42 U.S.C. 7401 et seq.

Subpart NN—Pennsylvania2. In § 52.2020, the table in paragraph (e)(1) is amended by revising the entry for Carbon Monoxide Maintenance Plan for the City of Pittsburgh. The revised text reads as follows:§ 52.2020 Identification of plan.

The Environmental Protection Agency (EPA) Region 4 is publishing a direct final Notice of Deletion of the Coleman-Evans Wood Preserving Superfund Site (Site), located in Whitehouse, Florida, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final deletion is being published by EPA with the concurrence of the State of Florida, through the Florida Department of Environmental Protection (FDEP), because EPA has determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.

DATES:

This direct final deletion is effective May 27, 2014 unless EPA receives adverse comments by April 28, 2014. If adverse comments are received, EPA will publish a timely withdrawal of the direct final deletion in the Federal Register informing the public that the deletion will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1983-0002, by one of the following methods:

• Hand Delivery: Rusty Kestle, 61 Forsyth Street SW., Atlanta GA 30303-8909. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-1983-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statue. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:

EPA Region 4 is publishing this direct final Notice of Deletion of the Coleman-Evans Wood Preserving Superfund Site (Site), from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action will be effective May 27, 2014 unless EPA receives adverse comments by April 28, 2014. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of the Federal Register. If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Coleman-Evans Wood Preserving Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

II. NPL Deletion Criteria

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

III. Deletion Procedures

The following procedures apply to deletion of the Site:

(1) EPA consulted with the state of Florida prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register.

(2) EPA has provided the state 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the state, through the FDEP, has concurred on the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, The Florida Times-Union. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

IV. Basis for Site Deletion

The following information provides EPA's rationale for deleting the Site from the NPL:

Site Background and History

The Coleman-Evans Wood Preserving Site (CERCLIS ID FLD991279894) is an 11-acre former wood preserving facility, located in the community of Whitehouse, Duval County, Florida, approximately eight miles west of downtown Jacksonville, Florida. Duval County lies within the drainage basin of the St. Johns River, in northeast Florida. The topography is coastal plain; however, rolling hills predominate throughout the county. The land use in the vicinity of the Site is mixed residential, light industrial and commercial. The Coleman-Evans Site is bordered on the north by the CSX Railroad, on the south by residential homes along General Avenue, on the east by heavy vegetation, and on the west by primarily commercial properties across Celery Avenue with residences to the southwest.

The Site is a former wood preserving facility that produced treated lumber from 1954 to the mid-1980s. Effluent wastewater from the treatment process was discharged to a drainage ditch which channeled the water south, eventually into McGirt's Creek. The Site utilized sludge pits and above ground storage tanks to store its wastes until site operations ceased in the late 1980's. Although wood-treating operations ceased in the late 1980's, sawing and kiln drying of untreated lumber continued at the Site until mid-1994. After that time, all commercial activities at the Site ceased. Due to poor waste management practices, soil and ground water in the vicinity of the Site became contaminated with pentachlorophenol (PCP) and dioxin.

The soil, sediments, surface water and ground water at the Site were contaminated with PCP and dioxin. The nature and extent of the contamination, both on and off the former facility property was defined through a series of investigations and treatability studies conducted between 1986 and 2006. Contaminant release on the former facility property occurred through poor waste management practices, and adjacent properties were impacted by wastewater discharge to a drainage ditch, which channeled the water south to McGirts Creek. The drainage ditch often overflowed spreading pentachlorophenol and dioxin contamination through the downstream residential properties. The surficial aquifer beneath the former facility property also was impacted by contamination, but is separated from the deeper drinking water aquifer by an aquitard.

Residential properties adjacent to and near the former facility property use private water supply wells completed in the upper portion of the deeper limestone aquifer for domestic supply. No site-related ground water contamination has been detected in this limestone aquifer or in these domestic supply wells. The human health risk assessment identified the site surface soil as a medium of concern for both current and future residents and commercial/industrial workers. Ground water also was a concern for future residents. The aggregate risks for the Site were an incremental lifetime cancer risk of greater than 1.0 × 10−6 and a hazard index of greater than 1.

In October, 1981, the Site was proposed for inclusion on the National Priorities List (NPL), based on a hazard ranking score of 59.14 and was proposed to the NPL in September of 1982 and added to the NPL in March, 1983 under 40CFR, Table 1 of Appendix B to part 300.

Redevelopment and Future Land Use

As part of the reuse planning for the former facility property, EPA provided a reuse planning grant to the City of Jacksonville which hired HDR/Landers Atkins Planners to research and develop alternatives for future use of the Site property. The Master Plan provides a guideline for the development of a park on the undeveloped 11 acre parcel. The scope of work for the Master Plan included three phases. These include: analysis and data gathering, plan alternatives and conceptual design, and the generation of the final Master Plan. The goal of the Master Plan was to provide a safe and functional place for the local residents to participate in recreational activities. Four concepts were considered in the development of the Master Plan. The final Master Plan includes the following features: auto circulation and parking, provision of domestic water and sewer utility, a community center and gymnasium, sports courts, passive recreation facilities, pedestrian circulation, and security.

The planned future use of the former facility property is considered compatible with the expected future use of the surrounding properties. This reflects continued growth in residential land use in west Jacksonville along with the supporting commercial development. Since much of the area around the former facility is zoned commercial/residential and is in close proximity to Chaffee Road and Interstate-10, the area impacted by OU2 may experience a changeover from predominantly residential to commercial land use in the future. Ground water use for domestic supply is being supplanted by municipal water and sewer systems in the community of Whitehouse. It is reasonable to expect that residential and commercial properties along General Avenue will be served by the municipal water system in the future. No significant changes in the patterns of surface water flow are anticipated in the foreseeable future.

In June, 1985, EPA issued a Removal Order to the Coleman-Evans Wood Preserving Company pursuant to Section 106 of the Comprehensive Environmental Resource and Conservation Liability Act (CERCLA). Coleman-Evans did not comply with the CERCLA Section 106 Removal Order, and EPA then conducted Emergency Response Actions at the Site in 1985 and 1993 to control the major sources of PCP contamination in the upper surficial aquifer and to protect nearby residents from exposure.

In April, 1988, a CERCLA Section 106 Order was issued to the Coleman-Evans Wood Preserving Company to implement the remedial design and remedial action (RD/RA).

OU1 Remedy Selection

EPA has chosen to use two Operable Units (OUs) for the Coleman-Evans Wood Preserving Company Superfund Site. OU1 addresses contaminated soil, sediments, surface water and ground water that was present on and adjacent to the former facility property and soil contamination present in areas within the surface water drainage pathway leading from the facility. OU2 addresses residual dioxin contamination in surface soil outside the areas addressed by OU1.

In April, 1986, the remedial investigation (RI), which characterized the extent of contamination at the Site and identified PCP as the primary chemical-of-concern (COC) at the Site, was completed. PCP was shown to be present in sediment, soil, surface water, and in the upper surficial aquifer.

In September, 1986, the original Record of Decision (ROD) for OU1 was signed. The 1986 ROD required excavation and incineration of PCP contaminated soil at levels greater than 10 milligrams per kilogram (mg/kg) and recovery of PCP contaminated ground water at levels greater than 1 microgram per liter (µg/L) with treatment via carbon adsorption.

In September, 1990, an Amended ROD (AROD) was signed. The AROD changed the soil remedy to the treatment and on-site disposal of PCP contaminated soils, sediments, and sludges at levels greater than 25 mg/kg via soil washing, bio-treatment, solidification/stabilization (S/S), on-site treatment and disposal of contaminated ground water collected during excavation, disposal of on-site structures, closure of sand filter units, and institutional controls.

In June, 1992, additional soil sampling determined that dioxin/furans are also chemicals of concern (COCs) at the Site. Additional investigation and treatability studies were conducted at the Coleman-Evans Site between 1992 and 1997.

In September, 1997, the EPA selected an Interim Remedial Action (IRA) for the Site in an AROD, which included the excavation of contaminated soil and sediment on and off the former facility property followed by on-site treatment using high-temperature thermal desorption, an innovative technology at the time. The IRA also provided for the collection, treatment, and discharge of contaminated ground water from the upper surficial aquifer at the site, collecting free-product for recycling and/or off-site disposal, and relocating residents, as necessary, to facilitate construction. The 1997 AROD for OU1 set final cleanup goals noted in Table 1 for contaminants in all media except the cleanup goal for dioxin in soil which was interim pending establishment of a federal and/or State standard.

The cleanup action for OU1 included issuance of four Explanation of Significant Differences (ESD) in June, 2001, August, 2003, February, 2004, and September, 2005 to address the addition of a pollution control device to the treatment system, two increases in the estimated volume of soil, sediment and debris requiring treatment, and a change in the technical approach to completion of the ground water remedy.

Soil treatment was completed in May, 2004 when cleanup goals for soils and sediment established for OU1 in the 1997 Amended ROD and noted in Table 1 were achieved for the Site. Ground water contamination was reduced to a small exceedance of ground water cleanup goals established in the 1997 Amended ROD and noted in Table 2 in a single well that is being monitored for natural attenuation. During the course of this action, over 210,000 net wet tons of soil were treated and placed on the facility property, and approximately 73,500,000 gallons of ground water and storm water were treated and discharged.

OU2 Remedy Selection

The ROD for OU2 was signed in September, 2006. The selected remedy in the 2006 ROD includes the following remedial components: excavation and on-site disposal of site-attributable dioxin contamination in exceedance of cleanup goals noted in Table 3 located in areas on and adjacent to the former facility property and adjacent to drainage pathways which may have been impacted by contaminated storm water runoff from the Site; restoration of excavation areas with clean topsoil and revegetation; placement of a nominal 2-foot cover over the excavated soils that were disposed on the former facility property during OU1 and OU2 remedial activities; and establishment of a restrictive covenant limiting on-site land use to commercial/industrial use (including use as a park). This action represents the final remedy selected for the Site, and, as such, is compatible with the intended future use of the Site. This action also is compatible with and complimentary to the action for OU1.

OU1 and OU2 Cleanup Goals

The soil cleanup levels are primarily risk-based and the ground water cleanup levels are based on applicable or relevant and appropriate requirements (ARARs) and/or are risk-based. The ground water cleanup level ARARs are health based and are the most stringent of federal or state primary drinking water standards.

OU1 Remedial Action

In 1997, EPA tasked the United States Army Corps of Engineers, Kansas City District, (USACE-NWK) to prepare the RD and to contract for the Remedial Action (RA) phase. The RD was completed in 1998. The RA contract was awarded by USACE-NWK to Fluor Daniel-GTI (FD-GTI) in 1999. Shortly after, FD-GTI was purchased by IT Corporation, which went into bankruptcy in 2001. IT Corporation was acquired by Shaw Environment and Infrastructure, Inc. (Shaw E&I) in 2002. This contract included a requirement that the thermal treatment portion be subcontracted to a third party under a fixed price subcontract. Roy F. Weston (Weston) was awarded the subcontract for thermal treatment.

FD-GTI mobilized to the site in May, 1999. FD-GTI performed all the site preparation work, mobilization of temporary facilities, installation of utilities, site access grants, equipment removal and disposal, and site clearing and grubbing. Weston mobilized their Thermal Desorption Unit (TDU) to the site in April, 2000. A Proof of Performance (POP) test showed that the unit was not able to meet the soil treatment standards. Weston had to replace this unit and design a new TDU. The new TDU was put into service in October, 2001. The new TDU passed a second POP test in October, 2001. Full scale operations continued through March, 2004.

Excavation grids were established across the site and in the drainage ditch to McGirt's Creek. The excavations were subdivided into 2,500 square foot areas. The soil was removed in 2-foot intervals. Five-point composite samples were collected from each floor area and sidewall samples were collected every 100-linear feet along the excavation perimeter to ensure that soil cleanup goals noted in Tables 1 and 3 were met. When the soils along the excavation perimeter did not meet the cleanup levels, the excavations were deepened by 2 feet and the side walls were extended by 2 feet. Oversized debris that was encountered during the excavation was sent for off-site disposal. Nearly all of the excavations zones grew beyond their original dimensions based on confirmatory soil sampling results. The original estimated volume of soil to be excavated in the 1997 AROD was 52,265 cubic yards. The final quantity was 170,000 cubic yards, which is an estimated 320% increase in soil volume that required treatment.

The ground water encountered during the excavation activities was managed through dewatering. All ground water encountered during excavation was collected and treated on-site, then discharged to the existing drainage ditch. All storm water collected during excavation activities, and decontamination water produced during the RA also was treated on-site and discharged as part of site operations.

Two inspections were conducted, a pre-final and final inspection, and both were conducted with representatives of the U.S. Army Corps of Engineers—Jacksonville District (USACE-SAJ), FDEP, and the U.S. Environmental Protection Agency (EPA) participating. These inspections fulfilled both the requirements for closeout of the construction contracts between USACE and the Remedial Action contractors, as well as the joint inspection requirement of the National Contingency Plan (40 CFR Section 300.515(g)).

The pre-final inspection was performed on March 2, 2004, prior to completion of thermal treatment of soil and during initial demobilization activities by the contractors at the Site. The completion requirements for the soil-phase of the Interim Remedial Action were modified from those in the Remedial Action contract by a February, 2004 Explanation of Significant Differences (ESD). This ESD recognized that certain contract items associated with site restoration would be re-sequenced to the ground water-phase of the action to coincide with final decision-making for the Site soils and due to cost limitations. The items included in the ESD were final debris disposal (pending a delisting determination) and final grading and topsoil placement (pending a decision on the final thickness of topsoil required).

During the pre-final inspection, a number of items were identified as necessary for the completion of soil-phase activities. These items were documented in a punch list.

The final inspection was performed on August 24, 2004, following substantial completion of the punch list items and Remedial Action contractor demobilization. The punch list items were reviewed and formed a basis for the final inspection. During the final inspection, some additional items were identified by FDEP and EPA. These items were substantially completed by USACE-SAJ by September 10, 2004. Ongoing activities included maintaining the vegetative cover and maintaining site security. The physical construction of the OU1—Phase 1 Remedial Action of the Coleman-Evans Wood Preserving Superfund Site was acceptably completed on September 24, 2004.

Based on the data collected during the ground water supplemental RD phase in 2004, an ESD was completed in 2005 that replaced the ongoing ground water pump and treatment selected in the 1997 AROD with a monitored natural attenuation (MNA) ground water remedy. Ground water monitored natural attenuation has been performed by EPA's Science and Ecological Support Division (SESD), and the monitoring results indicate that PCP cleanup levels in ground water have been achieved.

OU2 Remedial Action

The EPA tasked Black & Veatch Special Projects Corporation (Black & Veatch) to prepare the RD for OU2 in October, 2006 in accordance with 2006 ROD. The design was completed in May, 2007. Vertical delineation soil sampling performed as part of the RD identified that some of the proposed excavation areas would need to be excavated deeper. In early 2007, a meeting was held at the Site with EPA, FDEP and USACE-SAJ to field verify the limits of the excavation areas based on site features and to identify the four “hot spots” that were included in the 2006 ROD with locations to be determined in discussion with FDEP. All of the areas were identified and the RD was finalized.

The EPA awarded the RA phase to Black & Veatch in May, 2007. Black & Veatch subcontracted the construction activities to WRS Environment & Infrastructure, Inc. (WRS) in June, 2007. Construction activities began on July 5, 2007 with site surveying, installation of temporary facilities, a tree inventory, property access agreements, and installation of erosion and sediment controls. Upon receipt of the backfill sample analytical data, the excavation activities began. All of the excavation areas have been excavated and backfilled as specified in the RD.

Area 9 is located contiguous to the former excavation along the western side of the drainage ditch south of General Avenue. Confirmatory soil sampling collected from this area in April, 2007 demonstrated that the area was contaminated with dioxin above the OU1 cleanup level of 1.0 ppb. As a result, this area was subdivided into 3 sub-areas. All of the soils excavated from Area 9 were staged on-site in roll-off containers and sampled for waste characterization. Based on the waste characterization data, the roll-offs were transported off-site for incineration and disposal at Port Arthur, Texas.

During the OU2 construction activities, selected monitoring wells agreed upon by EPA and FDEP were abandoned properly in accordance with State of Florida requirements on August 13 and 14, 2007. The wells remaining on-site were required as part of the ground water MNA program or require more recent sample data in order to make final decision on the abandonment.

Repair to the head wall on the northern end of the 36-inch elliptical pipe, repairs to a damaged section of the pipe, and installation of the storm water conveyance structures were completed in August, 2007. Construction of the nominal 2-foot cover and final site grading and surveying also were complete in August, 2007. Sod was laid on the residential properties as part of site restoration. Hydro-seeding of the facility property was performed in late August, 2007.

EPA and Florida FDEP performed a joint pre-final inspection of the remedial action construction for the final remedy at the Coleman-Evans Wood Preserving Superfund Site on August 24, 2007. Participants in the inspection included: David Keefer (EPA), John Sykes (FDEP), Mike Schultz (USACE-SAJ), Clark Langston (USACE-SAJ), Daralene Pondo (BVSP), Kevin Brown (BVSP), David Behnke (BVSP), and Mark Talarico (WRS). The inspection was performed by reviewing the physical condition/status of each remedy component and the corresponding records beginning with the components of the remedy located off the former facility property. Punch list items were completed for each remedy component.

EPA and FDEP conducted a joint final inspection on September 14, 2007, and determined that the contractors have constructed the OU2 remedy in accordance with the RD plans and specifications which were developed in accordance with the final RODs for the Site.

Operation and Maintenance

All substantial elements of the physical construction of the remedy have been completed, and the remedy is currently protective of human health and the environment. Remaining activities include ensuring establishment of the vegetative cover on the facility property and issuance of the restrictive covenant/deed restriction. Institutional controls are a required component of this remedy since contaminated material will remain on-site. The restrictive covenant was established to limit the use of the former facility property to commercial/industrial (including use as a park) as an institutional control. The restrictive covenant ensures that the land use remains non-residential and that appropriate precautions are taken for any potential future intrusive subsurface work activities (e.g., installation of utility lines) in order to prevent disturbance of subsurface waste soil and ensure the short- and long-term effectiveness of the remedy. The institutional control also ensures that appropriate site access and precautions are in place for the duration of the ground water monitored natural attenuation.

The Sitewide Interim Remedial Action Report was finalized in July 2008. A Sitewide RA Report was signed in May 2013 since all ground water cleanup goals specified in the 1997 AROD have been met, the remedy is operational and functional, and all inspections have been completed.

The Operation and Maintenance (O&M) Plan for the Site was prepared by EPA in 2009 and O&M activities have been taking place for the past four years. The City of Jacksonville is the current property owner and is therefore responsible for conducting O&M at the Site. As part of the current O&M plan, the vegetation on the cap must be maintained and the institutional controls enforced as part of the selected remedy.

Five-Year Reviews

Pursuant to CERCLA section 121(c), 42 U.S.C. 9601 et seq., and EPA's Five-Year Review Guidance (EPA, 2001), because this remedy will result in hazardous substances, pollutants, or contaminants remaining on-site above levels that allow for unlimited use and unrestricted exposure, a statutory review must be conducted every five years after initiation of remedial action at the Coleman-Evans Wood Preserving Company Superfund Site to ensure that the remedy is protective of human health and the environment. The remedies at the Site overall currently protect human health and the environment because all contaminated soil has been treated; contaminated ground water is limited to the surficial aquifer on the former facility property; samples from private wells demonstrate that ground water contamination has not impacted the intermediate aquifer; and the Site is located in a Florida Delineated Area which restricts the installation of ground water wells. The second Five-Year Review (E2, 2009) was signed on June 20, 2009, and determined that the OU1 selected remedy to be protective in the long-term on the former facility property contaminant concentrations if groundwater contamination continued to decrease to the cleanup standards, the restrictive covenant (which limits future land use on the former facility property to commercial and recreational use and limits disturbance of the soil cover) was finalized to prevent the potential creation of exposure pathways at the site, and an O&M plan was developed to ensure the vegetative cover over the treated soil on the former facility property is maintained. All of these actions have since been achieved (EPA, 2013). The second Five-Year Review also determined that the OU2 selected remedy is protective in both the short-term and long-term in the areas off of the former facility property since the residential areas were cleaned up to the 7 ppt Florida residential soil dioxin standard and the other areas within OU2 were cleaned up to the 30 ppt Florida industrial/commercial soil dioxin standard. The third Five-Year Review will be completed prior to June 20, 2014, which is five years since the last review was completed.

Community Involvement

Community involvement activities were undertaken throughout the thirty year history of the site in the form of public meetings, five-year review interviews and site update mail-outs. There are currently no major community concerns about the site. The five-year review community involvement process will continue to monitor any potential community concerns.

Determination That the Site Meets the Criteria for Deletion in the NCP

The implemented remedy achieves the degree of cleanup and protection specified in the RODs for the site for all pathways of exposure. The selected remedy at the Site is protective of human health and the environment in the short-term because all exposure pathways that could result in unacceptable risks are being controlled. Contamination remaining on-site is being contained to the capped portion. The remedy will be protective in the long-term because institutional controls are in place in the form of land and ground water use restrictions; the fence needs to be kept closed completely to prevent Site access by trespassers who could disturb the cap and vegetative cover. These institutional controls are in the form of a Declaration of Restrictive Covenant executed between FDEP and the current property owner of the former facility portion of the Site, the City of Jacksonville. This declaration was executed on the 29th of September, 2009, and restricts activities on the property and the future use of the property. This declaration also increases the protectiveness of the completed remedial action in the future. All selected remedial and removal actions, remedial action objectives, and associated cleanup goals are consistent with EPA policy and guidance; EPA has followed the procedures required by 40 CFR 300.425(e) and these actions, objectives and goals have all been achieved and, therefore, no further Superfund response is needed to protect human health and the environment.

V. Deletion Action

The EPA, with concurrence of the State of Florida through the FDEP, has determined that all appropriate response actions under CERCLA, other than operation, maintenance, monitoring and five-year reviews, have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective May 27, 2014 unless EPA receives adverse comments by April 28, 2014. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

The Environmental Protection Agency (EPA) Region III is publishing a direct final Notice of Deletion of the Moyer's Landfill Superfund Site (Site) located in Lower Providence Township, Montgomery County, Pennsylvania, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final deletion is being published by EPA with the concurrence of the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), because EPA has determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.

DATES:

This direct final deletion is effective May 27, 2014 unless EPA receives adverse comments by April 28, 2014. If adverse comments are received, EPA will publish a timely withdrawal of the direct final deletion in the Federal Register informing the public that the deletion will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1983-0002, by one of the following methods:

• Hand Delivery: U.S. Environmental Protection Agency, Region III, Attn: Sharon Fang (3HS21), 1650 Arch Street, Philadelphia, PA 19103-2029, Phone: 215-814-3018, Business Hours: Mon. thru Fri.-9:00 a.m. to 4:00 p.m. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-1983-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket

All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:

EPA Region III is publishing this direct final Notice of Deletion of the Moyer's Landfill Superfund Site from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action will be effective May 27, 2014 unless EPA receives adverse comments by April 28, 2014. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of the Federal Register. If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the Moyer's Landfill Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

II. NPL Deletion Criteria

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the Commonwealth, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates such action is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

III. Deletion Procedures

The following procedures apply to deletion of the Site:

(1) EPA consulted with the Commonwealth of Pennsylvania prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete the Site co-published today in the “Proposed Rules” section of the Federal Register.

(2) EPA provided the Commonwealth 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the Commonwealth, through PADEP, concurred on the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, the Pottstown Mercury. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date, and will prepare a response to comments and continue with the deletion process, as appropriate, on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

IV. Basis for Site Deletion

The following information provides EPA's rationale for deleting the Site from the NPL:

Site Background and History

Moyer's Landfill (EPA Identification Number (PAD980508766) is a 65-acre inactive privately owned landfill located at Moyer Road in Collegeville, Lower Providence Township, Montgomery County, Pennsylvania. The Site is about twenty-seven (27) miles northwest of Philadelphia, Pennsylvania. According to the 2010 Census, Lower Providence Township has a population of 25,436.

The Site consists of open land surrounded by wooded areas on steep slopes. The landfill is fenced off and covered with vegetation. Located on the Site are leachate collection tanks and a wooden storage shed in the south valley. Runoff is directed towards stormwater basins around the perimeter of the landfill and routed off the landfill cap. The Skippack Creek is located about 350 feet north-west of the landfill. The Skippack Creek then discharges into the Perkiomen Creek which eventually discharges into the Schuylkill River.

The current owner of the landfill property is Grange Environmental. There are no current development plans, though the Township has expressed interest in purchasing the property to preserve it as open space. The landfill is bounded on the north and west by Evansburg State Park, on the east by a single original home and a new housing development (Valley High Estates) and on the south by the new housing development and undeveloped land. The Skippack Creek flows through Evansburg State Park and has, in the past, been stocked with trout.

Groundwater in the Site area occurs in an aquifer which has poor water yields. Most of the residents in the vicinity of the landfill are on public water; however, there are approximately ten residential wells along Moyer Road and Visitation Road, which are upgradient and east of the Site. There are no residential wells between the landfill and Skippack Creek.

The Moyer's Landfill property operated as a municipal landfill from the early 1940s until April 1981. The original unlined landfill area was approximately 39 acres in size. In the late 1970s, the landfill owners submitted a request to expand the landfill boundaries to the northwest. Site preparation work began on a new area in 1977, and included installation of an asphalt liner prior to filling. Landfilling was reportedly limited to this new, lined area from the late 1970s to early 1981, at which time an order from the Pennsylvania Department of Environmental Resources (PADER), now PADEP, closed the facility.

Originally, there was no management of leachate from the landfill and the discharge either seeped into groundwater or discharged directly to Skippack Creek. In the early 1970's PADER developed and implemented more comprehensive landfill regulations. As a result, a leachate collection system was constructed and began operating in 1972. However, leachate still overflowed continuously from several collection pits located on the property.

In 1981, PADEP closed the facility. The Moyer's Landfill became a Superfund Site when it was listed on the National Priorities List, (48 FR 40658) on September 8, 1983. The Remedial Investigation and Feasibility Study were performed by EPA and financed by the Fund.

Remedial Investigation and Feasibility Study (RI/FS)

In the early 1980s, on-site leachate and seep samples were collected and analyzed. The samples were contaminated with eighty-six (86) priority pollutants and sixteen (16) metals, nearly all contaminants of concern. The landfill surface showed a number of leachate and seep locations which served as a continuous source of pollution to ground and surface waters. There was no evidence of any detectable level of air pollution.

Surface water samples were taken from Skippack Creek and the Perkiomen Creek, and fish and sediment samples were taken from Skippack Creek. Contaminants were detected in low concentrations in both surface water, sediment, and fish. The contaminants were attributable to the landfill.

Off-site residential wells bordering the landfill were sampled for priority pollutants, metals, organics, PCBs, dioxins, and beta radiation. These wells did not show any detectable levels of organic or inorganic pollution. The residential groundwater met all EPA Drinking Water Standards at the time. Shallow monitoring wells installed around the periphery of the landfill showed concentrations of contaminants in the groundwater above risk-based numbers.

The groundwater contamination was mostly due to surface water percolation through the landfill and into the groundwater. The groundwater level is lower than the bottom of the landfill. Site contaminants were transported directly to the surface water bodies via surface water runoff and indirectly through contaminated groundwater (upper aquifer) discharged to the creeks. The deeper aquifer was not contaminated.

The ROD for the Moyer's Landfill Site dates from before the Superfund Amendments and Reauthorization Act of 1986 (SARA) and states the Remedial Action Objectives in the following manner: “The overall strategy is to mitigate and minimize harm to the public health and the environment. This should include minimizing further upper aquifer contamination and the possibility of direct contact with the waste. Leachate control is an integral part of the overall scheme in order to eliminate the continuing migration of contaminants across the Site and off the Site to the Skippack Creek.” Because EPA is responsible for protecting human health and the environment, EPA has conducted remedial actions such as capping the landfill and collecting landfill leachate and routing it for treatment. These actions prevent direct contact with the waste and contaminated leachate and prevent off-site migration of contamination via surface runoff and groundwater movement.

The 1985 ROD identified a primary and a contingent remedy. The implementation of the primary remedy depended on the success of the gas generation/recovery program. Since the gas recovery system was not feasible due to diminishing gas generation, the contingency alternative was implemented. The major components of the contingency remedy included:

• Miscellaneous work preparatory to installation of the RCRA cap: Grading, flattening of steep slopes, retaining walls and installation of rip-rap at areas that are most likely to be eroded;

• Construction of the RCRA cap;

• Gas venting and gas monitoring;

• Surface water collection and discharge to Skippack Creek;

• Security/fencing measures;

• Leachate collection and on-site treatment that will meet the 10−6 risk level in the groundwater and discharge requirements in the stream; and

• Operation and Maintenance: Ground and surface water monitoring, maintenance of the cap and treatment of leachate on-site.

In January 2000, EPA issued an Explanation of Significant Differences (ESD) which modified the leachate treatment portion of the remedy. The ESD changed the leachate treatment portion of the remedial action from on-site leachate treatment to leachate collection with treatment at an existing Publicly Owned Treatment Works (POTW). This change better protected the surface waters and the environment from the potential failure of an undersized treatment plant. In addition, routing the leachate to the POTW was shown to be more cost effective than building and operating a leachate treatment facility.

In September 2009, EPA issued a second ESD to require Institutional Controls (ICs) as part of the remedy. ICs are non-engineered instruments, such as administrative and legal controls, that are necessary to protect the integrity of the remedial measures on-site to ensure long-term protection of human health and the environment. ICs play an important role in site remedies because they reduce exposure to contamination by limiting land or resource use and guiding human behavior at a site.

Response Actions

EPA executed an Interagency Agreement with the U.S. Army Corps of Engineers (USACE) for the design of the remedial action, which was completed on April 20, 1989. EPA executed another Interagency Agreement with the USACE for the construction of the remedial action. After USACE began construction, local residents expressed concerns regarding truck traffic. In response, EPA then directed USACE to redesign a partial cap (instead of a full cap) with a perimeter leachate collection trench. A partial cap meant that less fill was needed for construction, thus reducing the truck traffic. Less cover, however, also led to steeper slopes for the redesigned landfill cap. The redesign was completed in November 1992 and construction of the redesigned landfill cap was completed in November 1994. The Remedial Action Report for the landfill cap, Operable Unit 1 (OU1) was completed in December 1996.

EPA identified the leachate collection and treatment portion of the remedial action as Operable Unit 2 (OU2). In January 2000, EPA issued the first ESD which changed the leachate treatment portion of the remedial action from on-site leachate treatment to leachate collection with treatment at an existing POTW. The modified remedial action was considered infeasible at the time of the ROD because the sewer line was not available near the Site when the ROD was issued. The construction of the OU2 remedial action was initiated in 2000 and completed in August 2002. OU2 responsibility was divided as follows: (1) Montgomery County constructed the municipal interceptor, (2) EPA via USACE constructed the necessary leachate equalization tanks, and (3) PADEP was responsible for collecting and transferring the leachate to the equalization tanks and from the tanks to the municipal interceptor. The Remedial Action Report for the leachate collection and treatment at the POTW (OU2) was completed in April 2004.

EPA and PADEP conducted a final inspection of the entire Site on August 30, 2002 and determined that the remedy had been constructed in accordance with the Remedial Design plans and specifications and that no further response was anticipated for this Site. The Moyer's Landfill Superfund Site achieved construction completion when the Preliminary Close-out Report was signed on September 17, 2002. Performance standards attained during the remediation were documented in the Remedial Action Completion Reports dated December 19, 1996 and April 4, 2004.

In October 2011, the Lower Providence Township approved an ordinance which serves as the IC for the Moyer's Landfill Site. The ordinance prohibits activities including, but not limited to, the following:

• Digging in or disturbance of the landfill cap, tampering with the hardware or equipment associated with the gas vents, monitoring wells, leachate collection and conveyance systems, or the security fencing.

• Any use of leachate generated at the Property including, without limitation, any activities that could cause exposure to contaminants in the leachate via ingestion, vapor inhalation or dermal contact.

• Digging in or disturbance of the landfill cap including, without limitation, any activities that could result in contact with contaminants in soils at the Property through ingestion, inhalation, or dermal contact.

Operation and Maintenance (O&M)

The USACE was responsible for maintenance of the landfill for the first eighteen months. A Site Maintenance Plan, dated January 1991, documented the expected activities to maintain and monitor the integrity of the Site, including monitoring the leachate, the groundwater in both the shallow and deep zones, and the gas vents on a quarterly basis, and visual inspections of the cap area and associated drainage/collection systems with corrective actions for identified problems. However, the plan stated that “the number of monitoring locations, analytical parameters, and sampling frequencies may be modified during the maintenance period by PADER. . . .” PADEP took responsibility for the landfill cap maintenance in May 1996. The responsibility for operation and maintenance (O&M) of the leachate storage and transfer system has always been with PADEP. EPA provided training on the system for PADEP and PADEP has been operating the system since start-up. The leachate currently is permitted by the Oaks POTW to meet their pretreatment program standards.

PADEP currently reports O&M status and issues to EPA. PADEP O&M consists of the following activities:

• Site Inspections: Once per month.

• Leachate Collection Inspections: Twice per month.

• Leachate Monitoring: Monthly reading of the leachate volume discharged to the POTW, and reporting information on total gallons per month and average daily flow rate to the POTW on a monthly basis, by the 15th of the month.

• Grass cutting: Twice per year. The landfill cap and surface water management features are inspected prior to each mowing.

• Repairs of Cap, Perimeter Road, Fence: As needed, as noted during site inspections.

• Tree removal: As needed, as noted during site inspections.

• Sampling of groundwater and air monitoring/gas vent: Every other year. Five monitoring wells, and the leachate sump in the South Valley are analyzed for volatile organics, TAL metals, and cyanide. The leachate may also be analyzed for other parameters requested by the POTW. Eight Summa canisters are deployed around the landfill (upwind and downwind) in order to record concentrations of volatile organic compounds. In addition, the Department also deploys up to six smaller, silica-lined Summa canisters to sample directly from active gas vents on the Site.

Five-Year Review

EPA has conducted two (2) Five-Year Reviews for this Site. Since the remedial action for Moyer's Landfill was selected before the Superfund Amendments and Reauthorization Act of 1986 (SARA) was enacted, EPA conducts these Five-Year Reviews as a matter of policy due to the fact that hazardous substances, pollutants, or contaminants remain at the Site above levels that allow for unlimited use and unrestricted exposure. These reviews are conducted pursuant to CERCLA Section 121(c), 42 U.S.C. 9621(c), and as provided in the current guidance on Five-Year Reviews.

The first Five-Year Review for the Site was completed on September 26, 2007, and the second Five-Year Review was completed on August 10, 2012. The next Five-Year Review for the Site is required by August 2017.

The second Five-Year Review for the Site found that the remedy has been constructed in accordance with the requirements of the ROD and is functioning as designed. The immediate threats have been addressed though capping the landfill and collecting and properly disposing of the leachate. Since the remedial actions at both Operable Units are protective, the Site is protective of human health and the environment. Long-term protectiveness of the remedy will be maintained by continuing to perform operation and maintenance of the landfill cap and leachate collection system; monitoring the groundwater and ambient air; and enforcing the institutional controls.

Community Involvement

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

EPA notified local officials about upcoming Five-Year Reviews and placed notices in the Times Herald to inform the public that the Five-Year Reviews were being conducted and when the findings of each would be available.

Determination That the Criteria for Deletion Have Been Met

No further response action under CERCLA is appropriate. EPA has determined based on the investigations conducted that all appropriate response actions required have been implemented at the Site. Through the second Five-Year Review, EPA has also determined that the remedy is considered protective of human health and the environment and, therefore, additional remedial measures are not necessary. Other procedures required by 40 CFR 300.425(e) are detailed in Section III of this direct Final Notice of Deletion.

V. Deletion Action

The EPA, with concurrence of the Commonwealth of Pennsylvania, through PADEP has determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action noncontroversial and routine, EPA is taking it without prior publication. This action will be effective May 27, 2014 unless EPA receives adverse comments by April 28, 2014. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process, as appropriate, on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

In this document, the Wireline Competition Bureau (Bureau) provides guidance regarding the process for eligible telecommunications carriers (ETCs) to elect the Universal Service Administrative Company (USAC) to perform Lifeline recertification for their subscribers in 2014.

This is a synopsis of the Commission's document in WC Docket No. 11-42; DA 14-303, released March 5, 2014. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the Internet at http://www.bcpiweb.com. It is also available on the Commission's Web site at http://www.fcc.gov/document/guidance-etcs-regarding-2014-usac-lifeline-recertification-process.

1. In the 2012 Lifeline Reform Order, 77 FR 12784, March 2, 2012, the Commission required ETCs to recertify the eligibility of ETCs' base of subscribers “annually.” Starting in 2013, ETCs had the option of having USAC conduct the annual recertification process on their behalf. The Commission delegated to the Bureau the authority to establish, in coordination with USAC, a process for USAC to recertify subscribers. This process for 2013 was described in detail in the 2013 Recert Notice, 78 FR 35632, June 13, 2013, and, as explained below, remains largely the same for 2014.

2. ETCs must provide notice to USAC by April 1, 2014 if they intend to have USAC perform the recertification process on their behalf for 2014. Any ETC that used USAC to perform recertification in 2013 will be presumed to elect USAC to perform recertification in 2014 unless the carrier notifies USAC otherwise by April 1, 2014. ETCs that did not elect to use USAC last year and that do not make an election by April 1, 2014 will be responsible for conducting recertification of their subscribers.

3. ETCs should perform their election or revocation by sending an email to USAC at LiVerifications@usac.org. USAC will provide guidance to ETCs regarding format of the information in the email.

4. Consistent with the process in 2013, USAC will recertify subscribers by mailing each subscriber a letter that provides the subscriber the notice required by § 54.405(e)(4) of the Commission's rules, informing the subscriber that the subscriber has 30 days to recertify the subscriber's continued eligibility to receive Lifeline service or the subscriber will be de-enrolled from the Lifeline program. The letter will also explain the recertification process and how the subscriber may confirm his or her eligibility. Subscribers will also receive a call or text message during the 30-day period to prompt a response. Any subscriber response submitted after the 30-day deadline will not be processed, and the subscriber will be considered ineligible for the program and will be de-enrolled.

5. USAC will provide subscribers with three methods to respond to the letter and recertify their eligibility. First, USAC will accept consumer calls made to a toll-free number, during which consumers will be able to recertify eligibility through an Inter-Active Voice Response (IVR). Second, USAC will allow consumers to verify their identity, read the certification language, and submit a response indicating they are recertifying their eligibility through a Web site maintained by USAC. Third, subscribers may also recertify by signing a recertification form provided by USAC and mailing the signed form to a receiving address designated by USAC.

6. ETCs that elect to have USAC recertify their Lifeline subscribers must provide USAC with their subscriber list by May 1, 2014. Consistent with the Commission's recertification requirements, the subscriber list must be based on the ETC's February 2014 FCC Form 497 and must be sent to USAC in a standardized format as instructed by USAC. To the extent that a state agency conducts recertification for all or a portion of an ETC's subscribers, the ETC may not elect to utilize USAC for recertifying those subscribers subject to recertification by the state agency. Therefore, prior to transmittal to USAC, the ETC should remove from its subscriber list those subscribers that are subject to the state agency's recertification process. Each ETC that elects USAC to perform the recertification process will provide a toll-free number that USAC can provide to the ETC's consumers who have questions about their service.

7. USAC will complete the recertification process over a series of months, by grouping the ETCs that elect to have USAC complete the process into phases so that the influx of responses can be staggered. This grouping will be done randomly and staggered based upon USAC capacity.

8. USAC will compile the responses and provide each ETC with a record of the subscriber recertification. USAC will provide each ETC with a list of subscribers that did not recertify, and therefore must be de-enrolled, and provide ETCs with sufficient information to compile their FCC Form 555 at least 30 days before the annual January 31 due date. ETCs must de-enroll subscribers within five days of receiving notice from USAC that the subscriber has failed to recertify. As noted above, all active subscribers enrolled in Lifeline prior to 2014 and for which the ETC sought reimbursement on its February 2014 FCC Form 497 are subject to recertification in 2014.

9. The Bureau concludes that good cause exists to make the procedures established in this document effective immediately (March 27, 2014), pursuant to section 553(d)(3) of the Administrative Procedure Act. The Bureau also finds good cause based on the need for these procedures to be in place and available to ETCs in time for ETCs to be able to submit their elections to USAC, and provide USAC with a subscriber list in time to comply with the procedures adopted here.

10. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Modification of fishing seasons; request for comments.

SUMMARY:

NOAA Fisheries announces three inseason actions in the ocean salmon fisheries. These inseason actions modified the commercial salmon fisheries in the area from Cape Falcon, Oregon to Point Arena, California.

DATES:

The effective dates for the inseason actions are set out in this document under the heading Inseason Actions. Comments will be accepted through April 11, 2014.

ADDRESSES:

You may submit comments, identified by NOAA-NMFS-2012-0248, by any one of the following methods:

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Peggy Mundy at 206-526-4323.

SUPPLEMENTARY INFORMATION:

Background

In the 2013 annual management measures for ocean salmon fisheries (78 FR 25865, May 3, 2013), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada Border to the U.S./Mexico Border, beginning May 1, 2013, and 2014 salmon seasons opening earlier than May 1, 2014. NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions).

Management of the salmon fisheries is generally divided into two geographic areas: north of Cape Falcon (U.S./Canada Border to Cape Falcon, Oregon) and south of Cape Falcon (Cape Falcon, Oregon to the U.S./Mexico Border). The inseason actions reported in this document affect fisheries south of Cape Falcon.

Inseason ActionsInseason Action #1

Inseason action #1 adjusted the scheduled opening date for commercial salmon fisheries from Cape Falcon, Oregon, to Humbug Mountain, Oregon, and from Humbug Mountain, Oregon, to the Oregon/California Border. These fisheries, previously scheduled to open March 15, 2014, now open April 1, 2014.

The Regional Administrator (RA) consulted with representatives of the Council, Oregon Department of Fish and Wildlife (ODFW), and California Department of Fish and Wildlife (CDFW) on March 11, 2014. The information considered during this consultation related to projected abundance of Chinook salmon stocks for the 2014 salmon fishing season. During the consultation, the states recommended adjusting the opening date for this fishery in order to conserve impacts on age-4 Klamath River fall Chinook salmon (KRFC); the RA concurred. KRFC is the constraining stock for Klamath Management Zone (KMZ) fisheries to meet annual catch limits (ACLs) and is used as a surrogate for impacts to Endangered Species Act (ESA) listed California coastal Chinook salmon. Inseason action #1 took effect on March 15, 2014 and remains in effect until May 1, 2014. Inseason action to modify quotas and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, ODFW, and CDFW on March 11, 2014. The information considered during this consultation related to projected abundance of Chinook salmon stocks for the 2014 salmon fishing season. During the consultation, the states recommended cancelling this commercial fishery in order to conserve impacts on age-4 Klamath River fall Chinook salmon (KRFC); the RA concurred. KRFC is the constraining stock for KMZ fisheries to meet ACLs and is used as a surrogate for impacts to ESA-listed California coastal Chinook salmon. Inseason action #2 takes effect on April 16, 2014, and remains in effect until May 1, 2014. Inseason action to modify quotas and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Inseason Action #3

Inseason action #3 adjusted the landing limits for halibut caught incidental to the April 2014 commercial salmon fishery. International Pacific Halibut Commission license holders participating in the April 2014 commercial salmon fishery may land or possess no more than one Pacific halibut per each four Chinook, except one Pacific halibut may be possessed or landed without meeting the ratio requirement, and no more than 12 halibut may be possessed or landed per trip.

The RA consulted with representatives of the Council, ODFW, and CDFW on March 11, 2014. The information considered during this consultation related to the 2014 Pacific halibut allocation provided to the commercial salmon fishery under the 2014 Pacific Halibut Catch Sharing Plan for the U.S. West Coast (Area 2A); this allocation is reduced from 2013. During the consultation, the states recommended reducing both the halibut trip limit and the landing ratio of halibut to Chinook salmon to conserve the reduced allocation; the RA concurred. Inseason action #3 takes effect on April 1, 2014, and remains in effect until May 1, 2014. Inseason action to modify retention regulations is authorized by 50 CFR 660.409(b)(1)(ii).

All other restrictions and regulations remain in effect as announced for the 2013 ocean salmon fisheries and 2014 fisheries opening prior to May 1, 2014 (78 FR 25865, May 3, 2013).

The RA determined that the best available information indicated that projected abundance of Chinook salmon and availability of Pacific halibut supported the above inseason actions recommended by the states of Oregon and California. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the time the action was effective, by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

Classification

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (78 FR 25865, May 3, 2013), the West Coast Salmon Fishery Management Plan (Salmon FMP), and regulations implementing the Salmon FMP, 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook salmon abundance projections and Pacific halibut allocations were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, thus allowing fishers access to the available fish at the time the fish were available while ensuring that quotas are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the Salmon FMP and the current management measures.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.

Office of National Marine Sanctuaries (ONMS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION:

Amendment to proposed rule; request for comments.

SUMMARY:

On March 18, 2013 (78 FR 16622), NOAA proposed to prohibit the introduction of introduced species into the state waters of Gulf of the Farallones and Monterey Bay national marine sanctuaries (GFNMS and MBNMS, respectively). The proposed prohibition included exceptions for the catch and release of striped bass and for introduced species as part of mariculture activities in the Tomales Bay region of GFNMS (the only geographic area within sanctuaries offshore of California where mariculture occurs). NOAA is now amending the March 2013 proposed rule to allow GFNMS and MBNMS to authorize certain introduced species of shellfish from commercial mariculture projects in all state waters of the sanctuaries.

DATES:

Comments on this proposed rule will be accepted on or before April 11, 2014.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NOS-2012-0113, by any of the following methods:

Instructions: This is a re-opening of the comment period for this docket. Comments must be submitted by one of the above methods to ensure that comments are received, documented, and considered by ONMS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. ONMS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

You may obtain copies of the original final environmental impact statement, record of decision, or other related documents through the following Web site: http://sanctuaries.noaa.gov/jointplan.

On November 20, 2008, NOAA issued a final rule associated with the Joint Management Plan Review (JMPR) of GFNMS, MBNMS, and Cordell Bank NMS (73 FR 70488). Among other things, the rule prohibited the introduction of introduced species within or into both the federal and state waters of GFNMS and MBNMS, except for the catch and release of striped bass in both sanctuaries and from existing commercial mariculture activities within the Tomales Bay region of GFNMS. In December 2008, the then-Governor of California, acting pursuant to the National Marine Sanctuaries Act, objected to these introduced species regulations for the state waters portions of GFNMS and MBNMS. As a result of that objection, NOAA's prohibitions on introduced species are limited to the federal waters of MBNMS and GFNMS.

On March 18, 2013, following discussions with the State of California, NOAA re-proposed the prohibition on the introduction of introduced species within or into the state waters of GFNMS and MBNMS to provide regulatory consistency across the four national marine sanctuaries offshore California (78 FR 16622). The proposal would maintain exceptions for the catch and release of striped bass and for state-permitted commercial mariculture activities in Tomales Bay. A 60-day comment period on the proposed rule closed on May 17, 2013. (Note: MBNMS regulations use the term “aquaculture” and GFNMS regulations use the term “mariculture” to refer to the same activity; accordingly, both of these terms are used in this notice of amended proposed rulemaking.)

NOAA received comments from both the California Department of Fish and Wildlife (CDFW) and aquaculture industry raising concerns that ONMS's broad definition of “introduced species” does not recognize that a number of introduced species of shellfish have been cultivated for over 100 years within sanctuary waters of Tomales Bay without adverse impacts to native resources. The Final Environmental Impact Statement for the 2008 Joint Management Plan Review recognized that non-native oyster species cultivated in Tomales Bay had not spread outside the mariculture areas. Both the CDFW and aquaculture industry also commented that the proposed regulation did not allow NOAA to consider potential future permit requests from the industry for cultivation of such species. The state believed that if NOAA exercised the authority to permit such operations, in close cooperation and collaboration with state resource management agencies—CDFW, California Fish and Game Commission (CFGC), and California Coastal Commission (CCC)—this would allow aquaculture operators and the state to demonstrate that expanding existing or developing new shellfish aquaculture operations involving introduced species of shellfish that are non-invasive would not harm sanctuary resources. Both CDFW and the aquaculture industry also expressed the view that this approach would be more consistent with Executive Order 13112 on the management of introduced species.

Through this amended notice of proposed rulemaking, NOAA is proposing to allow MBNMS and GFNMS to authorize state permits or leases for commercial mariculture projects in state waters involving introduced species of shellfish that the state management agencies and NOAA have determined are non-invasive and would not have significant adverse impacts to sanctuary resources or qualities. State agencies agree with NOAA that introduced species should be managed uniformly throughout the two sanctuaries.

Currently, the introduction of introduced species is prohibited in the federal waters of GFNMS. As amended, this proposed rule would extend the prohibition into the state waters of the sanctuary, including Tomales Bay. However, existing State-permitted commercial mariculture operations in Tomales Bay would not be subject to this regulation unless they seek a modification (e.g., changes to the species of cultivated shellfish or new areas for cultivation). For a new introduced species aquaculture operation, any such proposal after the effective date of these regulations would require a sanctuary authorization. Therefore, all existing commercial mariculture operations in Tomales Bay that have a valid lease or permit from the State as of May 1, 2014, would remain exempt from the prohibition on the introduction of introduced species and would not require a sanctuary authorization. However, a state permit, license or other authorization issued after May 1, 2014, to expand or otherwise modify an existing operation in Tomales Bay would need to be authorized by NOAA.

The Final EIS for the 2008 JMPR analyzed the effects of prohibiting the introduction of introduced species in the sanctuaries, including exempting the twelve state leases for commercial mariculture activities in Tomales Bay that were active at that time. The FEIS further stated that renewals of the state leases that did not increase the types of introduced species being cultivated or expand the area under cultivation would remain exempt. However, any new lease agreements would be subject to the prohibition. Therefore, the changes in this amended proposed rule do not change the environmental impact analysis as was described in the Final EIS—no increase in the environmental impact from introduced shellfish species under cultivation. Requests for authorizations from NOAA to modify existing operations would be reviewed for environmental impacts on a case-by-case basis. The regulations defining the ONMS authorization authority are found at 15 CFR 922.49.

NOAA would enter into a MOA with the State of California to define the role of various state agencies—CDFW, CFGC, CCC—working in collaboration with ONMS to consider whether an introduced species of shellfish could be considered non-invasive and possibly allowed to be cultivated in the sanctuary via an ONMS authorization of a state lease. State agencies would take the lead in determining whether an introduced species of shellfish is non-invasive but would consult with NOAA early in the process to ultimately reach a joint decision.

This proposed, limited authorization authority for commercial, shellfish mariculture activities occurring in state waters of GFNMS, in combination with the MOA with the State of California, would formalize the consultation requirements for any new or amended permit decision in state waters of GFNMS. This would provide significant protection to GFNMS from introduced species of shellfish while minimizing economic impacts to local mariculture businesses.

NOAA's proposed rule as published on March 18, 2013 (78 FR 16622), would have exempted all mariculture projects in Tomales Bay, yet would have involved extensive consultation between state agencies and NOAA through the MOA to address new or expanded projects in Tomales Bay. As now proposed here, NOAA authorizations would also include the same consultative process, and would impose little to no additional permitting delays following State action to approve leases and permits. ONMS regulations, along with the MOA, would describe a process for administrative appeals of any ONMS permit decision.

IV. Summary of the Revisions to GFNMS Regulations

This rule would provide GFNMS the ability to consider and authorize new or amended existing operations of commercial mariculture activities in state waters involving certain introduced species of shellfish that are determined to be non-invasive, including in Tomales Bay. Existing regulations regarding sanctuary authorization authority at § 922.49 would be modified to include subpart H for GFNMS-specific regulations. NOAA would also modify the exemption at § 922.82 to specify that commercial cultivation of introduced species of shellfish in Tomales Bay conducted pursuant to state leases in effect on May 1, 2014, would remain exempt from the prohibition. In § 922.82, NOAA would also add a subparagraph (d) that specifies that GFNMS could authorize the introduction of introduced species of shellfish that have been determined by the State of California and NOAA to be non-invasive and would not cause significant adverse effects on sanctuary resources or qualities. NOAA is seeking comment on whether such authority should be included in GFNMS regulations should an acceptable project in state waters be proposed in the future involving commercial aquaculture of introduced shellfish species that are non-invasive.

V. Summary of the Revisions to MBNMS Regulations

For the same reasons, MBNMS regulations would be modified to allow authorization of a valid permit, license or other authorization issued by the State of California for commercial shellfish aquaculture activities conducted in state waters of MBNMS involving introduced species of shellfish that NOAA and the State have determined to be non-invasive and would not cause significant adverse effects on sanctuary resources or qualities. MBNMS regulations already allow State of California permits to be authorized for certain activities that are otherwise prohibited in the sanctuary. This proposed rule would allow the Director to authorize state permits involving the introduction of an introduced species as described above. NOAA is specifically seeking comment on whether such authority should be included in MBNMS regulations if a commercial aquaculture project is proposed in state waters of the sanctuary involving introduced shellfish species that are non-invasive.

Section 301 of the NMSA (16 U.S.C. 1434) provides authority for comprehensive and coordinated conservation and management of national marine sanctuaries in coordination with other resource management authorities. When changing a term of designation of a National Marine Sanctuary, section 304 of the NMSA requires the preparation of a draft environmental impact statement (DEIS), as provided by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and that the DEIS be made available to the public. NOAA prepared a draft and final management plan and a draft and final EIS on the initial proposal and final rule for the Joint Management Plan Review (JMPR). Copies are available at the address and Web site listed in the Address section of this proposed rule. Responses to comments received on March 18, 2013 proposed rule and on this proposed revision to the regulations will be published in the preamble to the final rule and discussed in the record of decision. NOAA has made available the 2008 final environmental impact statement (FEIS) for the JMPR that was previously available to the public and which analyzes the environmental effects of the introduced species regulations as they are now proposed in this action.

B. National Environmental Policy Act

In the 2008 FEIS for the JMPR, NOAA identified a preferred action which was to modify the terms of designation and regulations for GFNMS and MBNMS to, among other things, prohibit the introduction of introduced species (with limited exceptions) throughout the sanctuaries, and NOAA endorses that action as re-proposed and as amended in this notice of proposed rulemaking. NOAA continues to propose regulations that would not affect existing mariculture projects in Tomales Bay that are conducted pursuant to a valid lease, permit, license or other authorization issued by the State of California as of May 1, 2014. Pursuant to a memorandum of agreement that would be executed, the state would consult with NOAA prior to any new or amended state-issued lease and permits. In addition, through this action NOAA would exercise limited authorization authority with respect to commercial mariculture activities in state waters of the sanctuary involving cultivation of introduced species of shellfish that NOAA and the State have determined are non-invasive and would not cause significant adverse effects. NOAA believes this is within the range of alternatives considered in the FEIS, and because there has not been a significant change to the environmental conditions or the potential environmental effects of the preferred alternative, NOAA has determined that a supplement to the FEIS is not required for this proposed action. Finally, any future proposal or amendments to existing state leases for a mariculture project involving cultivation of non-invasive introduced shellfish species would undergo environmental review pursuant to NEPA on a case-by-case basis to consider project-specific effects of that action. NOAA may refuse to authorize a project that would not comply with terms or conditions required by NOAA. 15 CFR 922.49(a).

Copies of the FEIS and other related materials that are specific to this action are available at http://sanctuaries.noaa.gov/jointplan/feis/feis.html, or by contacting NOAA at the address listed in the Addresses section of this proposed rule. Comments regarding the introduction of introduced species portion of the original FEIS are reopened for comment.

C. Executive Order 12866: Regulatory Impact

This rule has been determined to be not significant for purposes of Executive Order 12866.

D. Executive Order 13132: Federalism Assessment

NOAA has concluded that this regulatory action falls within the definition of “policies that have federalism implications” within the meaning of Executive Order 13132. NOAA's previous proposed rule and subsequent withdrawal were conducted in cooperation with the State of California, and pursuant to Section 304(b) of the NMSA. Since the proposed rule was issued on March 18, 2013, further consultations have occurred with the State of California, and the proposed changes contained in this notice reflect cooperative negotiations reached in those consultations. It is NOAA's view that, due to these negotiations, the state will not object to the amended changes in this action. In keeping with the intent of the Executive Order, NOAA consulted with a number of entities within the state which participated in development of the initial rule, including but not limited to, the California Coastal Commission, the California Department of Fish and Wildlife, and the California Natural Resources Agency.

E. Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was discussed in the proposed rule issued on March 18, 2013, and while the proposal has changed, the conclusion remains the same (78 FR 16622). The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows:

Using the SBA's Small Business Size Standards, NOAA determined that the small business concerns operating within both of the sanctuaries include: Commercial fishermen who vary in number seasonally and annually from approximately 300 to 500 boats; twelve mariculture leaseholders in Tomales Bay (in GFNMS); approximately 25 recreational charter fishing businesses; and approximately seven recreational charter businesses engaged in wildlife viewing. The small organizations, as defined under 5 U.S.C. 601(4), that would be impacted by this rule include approximately three small organizations operating within the waters of GFNMS, which include nongovernmental organizations (NGOs) or non-profit organizations (NPOs) dedicated to environmental education, research, restoration, and conservation concerning marine and maritime heritage resources. The small governmental jurisdictions, as defined under 5 U.S.C. 601(5), that would be impacted by this rule are the Tomales Bay settlements that are directly adjacent to GFNMS.

The prohibition on releasing or otherwise introducing from within or into GFNMS and MBNMS an introduced species is not expected to significantly adversely impact small entities because this activity is generally not part of their business or operational practices. As NOAA analyzed in more detail in 2008, small entities whose operational practices may include catch and release of striped bass (Morone saxatilis) (i.e., consumptive recreational charter businesses), would not be affected because the prohibition would not apply to the catch and release of this fish species already present in the sanctuaries. In fact, the prohibition against introduced species may result in indirect benefits for certain small entities since their activities could potentially be negatively impacted by the spread of introduced species, which can severely affect populations of endangered species, native species diversity, and the composition and resilience of natural biological communities. Introduced species pose a major economic and environmental threat to the living resources and habitats of a sanctuary as well as the commercial and recreational uses that depend on these resources. Preventing their introduction will therefore help small entities by preventing such detrimental impacts.

The proposed prohibition will not impact aquaculture leaseholders located adjacent to GFNMS. Existing leaseholders operating in Tomales Bay are excepted from the introduced species prohibition if they have active lease agreements from the State of California for commercial cultivation of introduced species of shellfish in Tomales Bay and in effect as of May 1, 2014. Under the revisions as described in this proposed rule, additional permits could be authorized for the introduction of introduced species of shellfish that have been determined by the State of California and NOAA to be non-invasive and that would not cause significant adverse effects on sanctuary resources or qualities. Pursuant to a memorandum of agreement, the State of California would consult with NOAA prior to issuing any new leases or permits for commercial cultivation of introduced species of shellfish in Tomales Bay. This prohibition would not put any current operations out of business, because they would not need to change anything about their current procedures to continue in their operations, if their leases are in effect on May 1, 2014.

Comments received on the economic impacts of this proposed rule will be summarized and responded to in the final rule. As a result of this assessment, a regulatory flexibility analysis was not required and none was prepared.

F. Paperwork Reduction Act

This proposed rule does not contain information collections that are subject to the requirements of the Paperwork Reduction Act. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

VII. Request for Comments

NOAA requests comments on this proposed rule, which amends the currently pending proposed rule published on March 18, 2013 (78 FR 16622). NOAA re-opens the docket NOAA-NOS-2012-0113 for comment for fifteen (15) days after publication of this notice.

Accordingly, for the reasons set forth above, 15 CFR part 922 is proposed to be amended as follows:

PART 922—[AMENDED]1. The authority citation for part 922 continues to read as follows:Authority:

16 U.S.C. 1431 et seq.

2. In § 922.49, revise the introductory text of paragraph (a), and paragraphs (b) and (c) to read as follows:§ 922.49Notification and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity.

(a) A person may conduct an activity prohibited by: subpart H; subparts L through P; or subpart R, if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation, or in the case of the Florida Keys National Marine Sanctuary after the effective date of the regulations in subpart P, provided that:

(b) Any potential applicant for an authorization described in paragraph (a) of this section may request the Director to issue a finding as to whether the activity for which an application is intended to be made is prohibited by subpart H as appropriate, or subparts L through P, or subpart R, as appropriate.

(c) Notification of filings of applications should be sent to the Director, Office of National Marine Sanctuaries at the address specified in subpart H as appropriate, or subparts L through P, or subpart R, as appropriate. A copy of the application must accompany the notification.

(a)(1) Except for permit actions taken for enforcement reasons (see subpart D of 15 CFR part 904 for applicable procedures), an applicant for, or a holder of, a National Marine Sanctuary permit; an applicant for, or a holder of, a Special Use permit issued pursuant to section 310 of the Act; a person requesting certification of an existing lease, permit, license or right of subsistence use or access under § 922.47; or, for those Sanctuaries described in subpart H, subparts L through P, and subpart R, an applicant for a lease, permit, license or other authorization issued by any Federal, State, or local authority of competent jurisdiction (hereinafter appellant) may appeal to the Assistant Administrator.

(10) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except:

(i) Striped bass (Morone saxatilis) released during catch and release fishing activity; or

(ii) Introduced species of shellfish cultivated by commercial mariculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization in effect on May 1, 2014 issued by the State of California.

(d) The prohibition in paragraph (a)(10) of this section does not apply to the introduction of any introduced species of shellfish that does not cause significant adverse effects to sanctuary resources or qualities and is non-invasive as determined by NOAA and the State of California, and is cultivated in state waters as part of commercial shellfish mariculture activities conducted pursuant to a valid lease, permit, license or other authorization issued by the State of California provided that the applicant complies with 15 CFR 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals, and extensions of State leases or permits in existence on May 1, 2014 require an authorization that must comply with this paragraph.

(e) The prohibitions in paragraphs (a)(2) through (a)(8) of this section, and (a)(12) of this section regarding any introduced species of shellfish that does not cause significant adverse effects to sanctuary resources or qualities and is non-invasive as determined by NOAA and the State of California, and that is cultivated in state waters as part of commercial shellfish aquaculture activities, do not apply to any activity authorized by any lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation (January 1, 1993) and issued by any Federal, State, or local authority of competent jurisdiction, provided that the applicant complies with 15 CFR 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals, and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date of Sanctuary designation.

Pursuant to section 215 of the Federal Power Act, the Commission proposes to approve a new Reliability Standard, PRC-025-1 (Generator Relay Loadability), submitted by the North American Electric Reliability Corporation (NERC), the Commission-approved Electric Reliability Organization. In addition, the Commission proposes to approve Reliability Standard PRC-023-3 (Transmission Relay Loadability), also submitted by NERC, which revises a currently-effective standard pertaining to transmission relay loadability.

DATES:

Comments are due April 28, 2014.

ADDRESSES:

Comments, identified by docket number, may be filed in the following ways:

• Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

1. Pursuant to section 215 of the Federal Power Act (FPA),1 the Commission proposes to approve a new Reliability Standard, PRC-025-1 (Generator Relay Loadability), submitted by the North American Electric Reliability Corporation (NERC). In addition, the Commission proposes to approve Reliability Standard PRC-023-3 (Transmission Relay Loadability), also submitted by NERC, which revises a currently-effective standard pertaining to transmission relay loadability.

1 16 U.S.C. 824o (2012).

2. NERC developed proposed Reliability Standard PRC-025-1 in response to certain Commission directives issued in Order No. 733,2 in which the Commission approved an initial version of a Reliability Standard governing transmission relay loadability. We believe that the proposed new standard on generator relay loadability, Reliability Standard PRC-025-1, will serve to enhance reliability by imposing mandatory requirements governing generator relay loadability, thereby reducing the likelihood of premature or unnecessary tripping of generators during system disturbances. In addition, we believe that the proposed revisions to PRC-023-2 are appropriate in that they clarify the applicability of the two standards governing relay loadability (PRC-025-1 and PRC-023-3), and prevent potential compliance overlap due to inconsistencies. Finally, we propose to approve the violation risk factors and violation severity levels as proposed for PRC-025-1, as well as the proposed implementation plans for the two standards.

3. Section 215 of the FPA requires a Commission-certified Electric Reliability Organization (ERO) to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval.3 Once approved, the Reliability Standards may be enforced by the ERO subject to Commission oversight, or by the Commission independently.4 In 2006, the Commission certified NERC as the ERO pursuant to FPA section 215.5

4. Protective relays are devices that detect and initiate the removal of faults on an electric system.6 They are designed to read electrical measurements, such as current, voltage, and frequency, and can be set to recognize certain measurements as indicating a fault. When a protective relay detects a fault on an element of the system under its protection, it sends a signal to an interrupting device, such as a circuit breaker, to disconnect the element from the rest of the system. Impedance relays, which are the most common type of relays used to protect transmission lines, continuously measure voltage and current on the protected transmission line and operate when the measured magnitude and phase angle of the impedance (voltage/current) falls within the settings of the relay.

6 A “fault” is defined in the NERC Glossary of Terms used in Reliability Standards as “[a]n event occurring on an electric system such as a short circuit, a broken wire, or an intermittent connection.”

C. Development of Reliability Standards on Relay Loadability

5. Following the August 2003 blackout that affected parts of the Midwest, the Northeast, and Ontario, Canada, NERC and the U.S.-Canada Power System Outage Task Force (Task Force) concluded that a substantial number of transmission lines disconnected during the blackout when load-responsive phase-protection backup distance and phase relays operated unnecessarily, i.e. under non-fault conditions. Although these relays operated according to their settings, the Task Force determined that the operation of these relays for non-fault conditions contributed to cascading outages at the start of the blackout and accelerated the geographic spread of the cascade.7 Seeking to prevent or minimize the scope of future blackouts, both NERC and the Task Force developed recommendations to ensure that these types of protective relays do not contribute to future blackouts.8

7 U.S.-Canada Power System Outage Task Force, Final Report on the August 14, 2003 Blackout in the United States and Canada: Causes and Recommendations, at 80 (2004) (Final Blackout Report).

8See Final Blackout Report, Recommendation 21A; North American Electric Reliability Council, August 14, 2003 Blackout: NERC Actions to Prevent and Mitigate the Impacts of Future Cascading Blackouts, at 13 and Recommendation 8a (2004).

6. NERC developed Reliability Standard PRC-023-1 (Transmission Relay Loadability) to address these recommendations, and submitted it for Commission approval under FPA section 215. On March 10, 2010, in Order No. 733, the Commission approved Reliability Standard PRC-023-1.9 In addition, the Commission directed NERC to (1) make certain modifications to the Reliability Standard, (2) submit a timeline for the development of a new Reliability Standard to address generator protective relay loadability, and (3) develop a new Reliability Standard addressing the issue of protective relay operation during stable power swings.

7. On September 30, 2013, NERC submitted a petition seeking approval of Reliability Standard PRC-025-1 (Generator Relay Loadability).10 NERC states in its petition that the proposed standard “is designed to prevent generator tripping when conditions do not pose a direct risk to the generator and associated equipment and will reduce the risk of unnecessary generator tripping—events that increase the severity of the disturbance.” 11 NERC further states that the proposed standard is intended to address the second part of the Commission's Order No. 733 directives, requiring development of a standard governing generator protective relay loadability.12 NERC notes that it addressed the first Order No. 733 directive, requiring modification of PRC-023-1, through its revised standard PRC-023-2 (currently in effect).13 NERC indicates that it is addressing the third portion of the Order No. 733 directives, relay operation during stable power swings, as part of a separate phase of the project.14

10 Proposed Reliability Standards PRC-025-1 and PRC-023-3 are not attached to this Notice of Proposed Rulemaking. The complete texts of these proposed Reliability Standards are available on the Commission's eLibrary document retrieval system in Docket Nos. RM13-19-000 and RM14-3-000, and are posted on NERC's Web site, available at: http://www.nerc.com.

11Petition of the North American Electric Reliability Corp. for Approval of Proposed Reliability Standard PRC-025-1 (Generator Relay Loadability), Docket No. RM13-19-000, at 4 (Sept. 30, 2013) (Sept. 30 Petition or Petition). NERC requested that the Commission delay its consideration of PRC-025-1 until NERC could finalize and submit for approval certain related revisions to its transmission relay loadability standard, PRC-023-2. Those revisions were submitted on Dec. 17, 2013, as discussed further below.

14Id. NERC indicated that this third phase of its response to Order No. 733 is tentatively scheduled to be completed in December 2014. Id.

8. The stated purpose of PRC-025-1 is “[t]o set load-responsive protective relays associated with generation Facilities at a level to prevent unnecessary tripping of generators during a system disturbance for conditions that do not pose a risk of damage to the associated equipment.” 15 Proposed Reliability Standard PRC-025-1 would apply to any generator owner, transmission owner, or distribution provider “that applies load-responsive protective relays at the terminals of the Elements listed in 3.2, Facilities.” 16 “Facilities,” in turn, are defined in section 3.2 of the proposed standard as:

15 Sept. 30 Petition, Ex. A at 3. While NERC has not proposed a definition for the term “load-responsive protective relays,” Attachment A of existing Reliability Standard PRC-023-2, which also uses the term “load-responsive protective relays” states that the standard includes “any protective functions which could trip with or without time delay, on load current.” NERC Reliability Standard PRC-023-2, available at http://www.nerc.com/_layouts/PrintStandard.aspx?standardnumber=PRC-023-2&title=Transmission%20Relay%20Loadability&jurisdiction=United%20States.

16 Sept. 30 Petition, Ex. A at 3. NERC further explains that the standard should “include all load-responsive protective relays that are affected by increased generator output in response to system disturbances.” Sept. 30 Petition, Ex. A at 25 (Guidelines and Technical Basis) (hereinafter Guidelines).

Elements associated with Bulk Electric System (BES) generating units and generating plants, including those * * * identified as Blackstart Resources in the Transmission Operator's system restoration plan:

3.2.4 Elements that connect the GSU transformer(s) to the Transmission system that are used exclusively to export energy directly from a BES generating unit or generating plant. Elements may also supply generating plant loads.

3.2.5 Elements utilized in the aggregation of dispersed power producing resources.

9. Proposed Reliability Standard PRC-025-1 has only one requirement, that each applicable entity “shall apply settings that are in accordance with PRC-025-1—Attachment 1: Relay Settings, on each load-responsive protective relay while maintaining reliable fault protection.” 17 The relay setting options are defined in Table 1 of Attachment 1, and include the specific bus voltage and other inputs to be used depending on the application (e.g., synchronous or asynchronous generator, generator step-up transformer, or unit auxiliary transformer) and the type of relay. For most applications of each type of relay, the proposed standard would give applicable entities the option of adopting relay settings that meet the stated criteria as determined through (1) a relatively simple calculation, (2) a more complex calculation, or (3) a described simulation. As stated in the standard, the criteria in Attachment 1 “represent short-duration conditions during which generation Facilities are capable of providing system reactive resources, and for which generation Facilities have been historically recorded to disconnect, causing events to become more severe.” 18

17Id. 18, and Ex. A at 4.

18Id., Ex. A at 4 (Rationale for R1).

10. NERC further explains in its petition that the specific relay setting criteria are based on system conditions observed during the August 2003 Blackout.19 The criteria for relays applied on synchronous generators, and their associated generator step-up transformers (GSUs) and connecting elements, are based on the response of the synchronous generator to depressed transmission system voltage (with allowances for reactive power losses across the GSU transformer). The criteria for relays applied on asynchronous generators and their associated GSU transformers and connecting elements are based on the more limited response of an asynchronous generator to the depressed voltage (with no allowance for loss of reactive power across the GSU transformer because such losses are not significant).20 The criteria for relays applied on unit auxiliary transformers (UATs) that supply station service are based on the increased current requirements of station service load during a depressed voltage condition.

19Id. 10.

20Id. 11.

11. In its justification for approval of the proposed standard, NERC explains that “[a]nalyses of power system disturbances over the past twenty-five years have found generators to have tripped unnecessarily—an occurrence that has the potential to extend the scope and duration of a disturbance.” 21 According to NERC, during the recovery phase of a disturbance, system voltage may be widely depressed and may fluctuate. To support the system during this phase of a disturbance, NERC explains that the proposed standard “establishes criteria for setting load-responsive relays such that individual generators may provide Reactive Power within their dynamic capability during transient time periods,” thereby avoiding unnecessary tripping of generators and ensuring that “dynamic capability is available to support system recovery.” 22

21Id. 9.

22Id. 9-10.

12. NERC proposes Requirement R1 of PRC-025-1 be assigned a “High” violation risk factor, and a “Severe” violation severity level for failure to apply settings as required. NERC's Implementation Plan proposes that applicable entities must be in compliance with the new standard: (1) 60 months after regulatory approval where compliance can be achieved without replacement or removal of relays; or (2) 84 months after regulatory approval if replacement or removal of relays is necessary.23

23See Sept. 30 Petition, Ex. B (Implementation Plan).

2. Proposed Reliability Standard PRC-023-3

13. On December 17, 2013, NERC submitted proposed clarifying changes to Reliability Standard PRC-023-2, as reflected in PRC-023-3, as “Supplemental Information” to its Sept. 30 Petition.24 NERC explains in its Supplemental Filing that these changes were identified during development of PRC-025-1 as “necessary to establish a bright-line distinction between the applicability of load-responsive protective relays in the transmission and generator relay loadability Reliability Standards.” 25 NERC explains that stakeholders became concerned about potential compliance overlap between the new generator relay loadability standard, PRC-025-1, and existing standard PRC-023-2, which currently applies to certain elements that connect GSU transformers to the transmission system.

14. In order to clarify that proposed standard PRC-025-1 is intended to cover “all load responsive protective relays applied at the terminals of generators and GSU transformers,” 26 NERC proposes to remove Criteria 6 of Requirement R1 from PRC-023-2 in its entirety. That sub-requirement currently requires applicable entities to:

26See id. at 4.

Set transmission line relays applied on transmission lines connected to generation stations remote to load so they do not operate at or below 230% of the aggregated generation nameplate capability.27

27See Supplemental Filing, Ex. A, Redline of PRC-023-2 at 6.

NERC also proposes to change the applicability section of PRC-023-2 to exclude “Elements that connect the GSU transformer(s) to the Transmission system that are used exclusively to export energy directly from a BES generating unit or generating plant.” 28

15. NERC explains in its Supplemental Filing that the two relay loadability standards, as revised, would be based on the location where the relays are applied and not on the intended protection functions, which it believes is advantageous because it:

(i) Facilitates the establishment of generator relay loadability requirements based on the physics associated with increased generator output during stressed system conditions.

(ii) Avoids ambiguity as to whether the intended protection function is for the generating unit or the Transmission System. . . .

(iii) Provides clear division of applicability between the Generator and Transmission Relay Loadability Reliability Standards based on the physical location, independent of the entity that owns the relay.29

29 Supplemental Filing at 5.

16. Under NERC's proposed implementation plan, Reliability Standard PRC-023-3 will become effective on the first day of the first calendar quarter beyond the date that the standard is approved by the applicable regulatory authority. Reliability Standard PRC-023-2 would be retired immediately prior to the effective date of PRC-023-3, except that Criterion 6 of Requirement R1 would remain in effect until the effective date of PRC-025-1. Any implementation dates or milestones established under PRC-023-2 would remain in place.30

30 As part of its Supplemental Filing, NERC also submitted a report on UAT relay loadability to address concerns raised by minority commenters during the development of PRC-025-1 as to whether UAT relays on the low-voltage side should be included. See id. at 6 and Ex. E. The report concludes that there is no adverse reliability impact from Reliability Standard PRC-025-1 as proposed, and finds that “based on a comparison of the simulation models and the actual event data, the simulation results are conservative. The model results, coupled with the NERC Generating Availability Data System (GADS) analysis, are indicative that a reliability gap does not result from excluding relays on the low-voltage side of the UAT from PRC-025-1.” Supplemental Filing at 6, Ex. E at 6.

II. Discussion

17. Pursuant to section 215(d)(2) of the FPA, the Commission proposes to approve Reliability Standard PRC-025-1, including its associated violation risk factors and violation severity levels, Reliability Standard PRC-023-3, and NERC's proposed implementation plans for the new and revised standards. PRC-025-1 appears to adequately address the Commission directive in Order No. 733 that NERC develop a separate Reliability Standard that addresses generator step-up and auxiliary transformer loadability, and do so “in a way that is coordinated with the Requirements and expected outcomes of PRC-023-1.” 31 In addition, we believe that PRC-025-1 will enhance reliability by imposing mandatory requirements governing generator relay loadability settings, thereby reducing the likelihood of premature or unnecessary tripping of generators during system disturbances.

31See Order No. 733, 130 FERC ¶ 61,221 at PP 104-106.

18. We also propose to approve the clarifying modifications reflected in Reliability Standard PRC-023-3, because we agree they serve to clarify the applicability of the two standards governing relay loadability and prevent potential compliance overlap due to inconsistencies.

III. Information Collection Statement

19. The collection of information contained in this Notice of Proposed Rulemaking is subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.32 OMB's regulations require approval of certain information collection requirements imposed by agency rules.33 Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

32 44 U.S.C. 3507(d) (2012).

33 5 CFR 1320.11 (2013).

20. We solicit comments on the need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. Specifically, the Commission asks that any revised burden or cost estimates submitted by commenters be supported by sufficient detail to understand how the estimates are generated.

21. The Commission proposes to approve Reliability Standard PRC-025-1 and to approve revisions to PRC-023-2. Proposed Reliability Standard PRC-025-1 will impose new requirements to set certain generator protective relays in accordance with prescribed criteria, and will apply to transmission owners, distribution providers, and generator owners with applicable relays. Affected entities will have to ensure that their relays are set in accordance with these criteria and maintain records or other evidence demonstrating their compliance with the standard's requirements. The revisions to PRC-023-2 will result in a change in how relay settings are calculated for certain kinds of relays, but will not result in reporting or recordkeeping requirements or burden.

Public Reporting Burden: Proposed Reliability Standard PRC-025-1 does not require responsible entities to file information with the Commission. However, the Reliability Standard requires applicable entities to develop and maintain certain information, subject to audit by a Regional Entity. In particular, transmission owners, generator owners and distribution providers must “have evidence” to show that each of its load-responsive protective relays are set according to one of the options in Attachment 1 to Reliability Standard PRC-025-1. Our estimate below regarding the number of respondents is based on the NERC compliance registry as of January 31, 2014. According to the NERC compliance registry, NERC has registered 539 distribution providers, 903 generator owners and 344 transmission owners. However, under NERC's compliance registration program, entities may be registered for multiple functions, so these numbers incorporate some double counting. The number of unique entities responding will be approximately 1,019 34 entities registered as a transmission owner, a distribution provider, or a generator owner that is also a transmission owner and/or a distribution owner. The Commission estimates the annual reporting burden and cost as follows:

34 This estimate assumes all of the unique entities apply load-responsive protective relays.

35 Normally these reporting and recordkeeping requirements would be included under FERC-725G (OMB Control No. 1902-0252). However, only one request per OMB Control Number can be pending OMB review at a time. Because a pending and unrelated rulemaking also affects other aspects of FERC-725G, the reporting and record retention requirements for this NOPR in RM13-19 and RM14-3 will be submitted to OMB for review under FERC-725Q.

37 The estimated hourly costs (salary plus benefits) are based on Bureau of Labor and Statistics (BLS) information (available at http://bls.gov/oes/current/naics3_221000.htm#17-0000) for an electrical engineer ($59.62/hour for review and documentation), and for a file clerk ($28.95/hour for record retention).

Necessity of the Information: The Generator Relay Loadability Reliability Standard, if adopted, would implement the Congressional mandate of the Energy Policy Act of 2005 to develop mandatory and enforceable Reliability Standards to better ensure the reliability of the nation's Bulk-Power System. Specifically, the purpose of the proposed Reliability Standard is to set load-responsive protective relays associated with generation facilities at a level to prevent unnecessary tripping of generators during a system disturbance for conditions that do not pose a risk of damage to the associated equipment. The proposed Reliability Standard requires entities to maintain records subject to review by the Commission and NERC to ensure compliance with the Reliability Standard.

Internal Review: The Commission has reviewed the requirements pertaining to the proposed Reliability Standard for the Bulk-Power System and determined that the proposed requirements are necessary to meet the statutory provisions of the Energy Policy Act of 2005. These requirements conform to the Commission's plan for efficient information collection, communication and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information requirements.

23. Comments concerning the information collections proposed in this NOPR and the associated burden estimates should be sent to the Commission in these dockets and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address: oira_submission@omb.eop.gov. Please reference FERC-725Q and the docket numbers of this Notice of Proposed Rulemaking (Docket Nos. RM13-19-000 and RM14-3-000) in your submission.

IV. Regulatory Flexibility Act Certification

24. The Regulatory Flexibility Act of 1980 (RFA) 38 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a proposed rule and that minimize any significant economic impact on a substantial number of small entities. The Small Business Administration's (SBA's) Office of Size Standards develops the numerical definition of a small business.39 The SBA recently revised its size standard for electric utilities (effective January 22, 2014) to a standard based on the number of employees, including affiliates (from a standard based on megawatt hours).40 Under SBA's new size standards, generator owners, distribution providers, and transmission owners likely come under one of the following categories and associated size thresholds: 41

25. Based on U.S. economic census data,42 the approximate percentages of small firms in these categories varies from 24 percent to 94 percent. However, currently FERC does not have information on how the economic census data compares with entities registered with NERC and is unable to estimate the number of small GOs, DPs, and TOs using the new SBA definitions.43 Regardless, FERC recognizes that the rule will likely impact small GOs, DPs, and TOs and estimates the economic impact on each entity below.

42 Data and further information are available from SBA available at http://www.sba.gov/advocacy/849/12162.

43 Using the previous SBA definition, 230 of the 1,019 entities affected by the proposed PRC-025-1 would have qualified as small entities.

26. Proposed Reliability Standard PRC-025-1 will serve to enhance reliability by imposing mandatory requirements governing generator relay loadability, thereby reducing the likelihood of premature or unnecessary tripping of generators during system disturbances. The Commission estimates that each of the small entities to whom the proposed Reliability Standard PRC-025-1 applies will incur one-time compliance costs of $4,480 (i.e., the cost of re-setting any relays found to be out of compliance),44 plus paperwork and record retention costs of $1,192 (one-time implementation) and $57.90 (annual ongoing).45 Per entity, the total one-time implementation costs are estimated to be $5,672 (including paperwork and non-paperwork costs) and the annual ongoing costs are estimated to be $57.90.

44 These are non-paperwork related costs, which are not reflected in the burden described in the Information Collection Section above, and instead reflect the burden of re-setting relays in order to comply with the new requirements of PRC-025-1. Specifically, this figure reflects an estimated time of 8 hours per relay, assuming an average of 8 digital relays which will need to be re-set per small entity, at a cost of $70 per hour (the average of the salary plus benefits for a manager and an engineer, from Bureau of Labor and Statistics available at http://bls.gov/oes/current/naics3_221000.htm and http://www.bls.gov/news.release/ecec.nr0.htm).

45 The one-time paperwork-related implementation cost estimate is based on a burden of 20 hours at $59.62/hour, and the annual record-keeping cost estimate is based on a burden of 2 hours at $28.95/hour. See supra at 21 and P 1 note/39.

27. The Commission does not consider the estimated costs per small entity to have a significant economic impact on a substantial number of small entities. Accordingly, the Commission certifies that this NOPR will not have a significant economic impact on a substantial number of small entities.

V. Environmental Analysis

28. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.46 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.47 The actions proposed herein fall within this categorical exclusion in the Commission's regulations.

29. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due April 28, 2014. Comments must refer to Docket Nos. RM13-19-000 and RM14-3-000, and must include the commenter's name, the organization they represent, if applicable, and address.

30. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

31. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

32. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

VII. Document Availability

33. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

34. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

35. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov.

This document cancels a public hearing on proposed regulations that provides guidance to nonresident alien individuals and foreign corporations that hold certain financial products providing for payments that are contingent upon or determined by reference to U.S. source dividend payments and to withholding agents.

DATES:

The public hearing originally scheduled for April 11, 2014 at 10 a.m. is cancelled.

A withdrawal notice of proposed rulemaking, notice of proposed rulemaking and notice of public hearing that appeared in the Federal Register on Thursday, December 5, 2013 (78 FR 73128) announced that a public hearing was scheduled for April 11, 2014, at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. The subject of the public hearing is under section 871(m) of the Internal Revenue Code.

The public comment period for these regulations expired on March 5, 2014. The withdrawal notice of proposed rulemaking, notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed by March 5, 2014. As of Wednesday, March 19, 2014, no one has requested to speak. Therefore, the public hearing scheduled for April 11, 2014, is cancelled.

The Coast Guard proposes to establish special local regulations during the “Coastal Aquatics Swim Team Open Water Summer Shore Swim”, a marine event to be held on the waters of the Nanticoke River at Bivalve, MD on June 29, 2014. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Nanticoke River during the event.

DATES:

Comments and related material must be received by the Coast Guard on or before April 28, 2014. The Coast Guard anticipates that this proposed rule will be effective on June 29, 2014.

ADDRESSES:

You may submit comments identified by docket number using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: 202-493-2251.

(3) Mail or Delivery: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries accepted between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number is 202-366-9329. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Mr. Ronald Houck, U.S. Coast Guard Sector Baltimore, MD; telephone 410-576-2674, email Ronald.L.Houck@uscg.mil. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:Table of AcronymsDHS Department of Homeland SecurityFR Federal RegisterNPRM Notice of Proposed RulemakingA. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

1. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number [USCG-2014-0138] in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

2. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2014-0138) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

3. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

4. Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

B. Regulatory History and Information

The current regulations under 33 CFR part 100 address safety for reoccurring marine events. This marine event does not appear in the current regulations; however, as it is a regulation to provide effective control over regattas and marine parades on the navigable waters of the United States so as to insure safety of life in the regatta or marine parade area, this marine event therefore needs to be temporarily added.

C. Basis and Purpose

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to ensure safety of life on navigable waters of the United States during the Coastal Aquatics Swim Team Open Water Summer Shore Swim event.

D. Discussion of Proposed Rule

On June 29, 2014, the Coastal Aquatics Swim Club of Salisbury, Maryland, is sponsoring the inaugural “Coastal Aquatics Swim Team Open Water Summer Shore Swim” in the Nanticoke River at Bivalve, MD. The event will occur from 8:30 a.m. to 12 p.m. Noon. Approximately 200 youth swimmers will compete on 1/2-mile, 1-mile and 2-mile endurance open water courses located adjacent to Cedar Hill Marina Park. All participants will start and finish at the Cedar Hill Marina beach. The inaugural Coastal Aquatics Swim Team Open Water Summer Shore Swim is sanctioned by Maryland Swimming Inc. Participants will be supported by sponsor-provided watercraft.

The Coast Guard proposes to establish special local regulations on specified waters of the Nanticoke River. The regulations will be enforced from 8 a.m. to 12:30 p.m. on June 29, 2014. The regulated area includes all waters of Nanticoke River, bounded by a line drawn from a point on the shoreline at latitude 38°19′15″ N, longitude 075°53′13″ W, thence westerly to latitude 38°19′23″ N, longitude 075°53′45″ W, thence southerly to latitude 38°18′51″ N, longitude 075°54′01″ W, thence easterly to latitude 38°18′42″ N, longitude 075°53′31″ W, located at Bivalve, MD.

The effect of this proposed rule will be to restrict general navigation in the regulated area during the event. Vessels intending to transit the Nanticoke River through the regulated area will be allowed to safely transit the regulated area only when the Coast Guard Patrol Commander has deemed it safe to do so. The Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels. The Coast Guard will provide notice of the special local regulations by Local Notice to Mariners, Broadcast Notice to Mariners, and the official patrol on scene.

E. Regulatory Analyses

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The economic impact of this rule is not significant for the following reasons: (1) The special local regulations will be enforced for only 41/2 hours; (2) the regulated area has been narrowly tailored to impose the least impact on general navigation, yet provide the level of safety deemed necessary; (3) persons and vessels will be able to transit safely around the regulated area; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

2. Impact on Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Nanticoke River encompassed within the special local regulations from 8 a.m. to 12:30 p.m. on June 29, 2014. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

4. Collection of Information

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves special local regulations issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

(2) Official Patrol means any vessel assigned or approved by Commander, Coast Guard Sector Baltimore with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

(3) Participant means all persons and vessels participating in the Coastal Aquatics Swim Team Open Water Summer Shore Swim event under the auspices of the Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector Baltimore.

(c) Special local regulations: (1) The Coast Guard Patrol Commander may forbid and control the movement of all vessels and persons in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area shall immediately comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

(2) With the exception of participants, all persons desiring to transit the regulated area must first obtain authorization from the Captain of the Port Baltimore or his designated representative. To seek permission to transit the area, the Captain of the Port Baltimore and his designated representatives can be contacted at telephone number 410-576-2693 or on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF-FM channel 16 (156.8 MHz).

(3) The Coast Guard Patrol Commander may terminate the event, or the operation of any participant in the event, at any time it is deemed necessary for the protection of life or property.

(4) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF-FM marine band radio announcing specific event date and times.

(d) Enforcement period: This section will be enforced from 8 a.m. to 12:30 p.m. on June 29, 2014.

The Coast Guard is proposing a temporary change to the enforcement location of a safety zone for one specific recurring fireworks display in the Fifth Coast Guard District. This regulation applies to only one recurring fireworks event, held adjacent to the Cape Fear River, Wilmington, North Carolina. The fireworks display formerly originated from a location on land but this year will originate from a barge. The safety zone is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in a portion of the Cape Fear River, Wilmington, North Carolina, during the event.

DATES:

Comments and related material must be received by the Coast Guard on or before April 28, 2014.

ADDRESSES:

You may submit comments identified by docket number using any one of the following methods:

See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email CWO4 Joseph M. Edge, U.S. Coast Guard Sector North Carolina; telephone 252-247-4525, email Joseph.M.Edge@uscg.mil. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:Table of AcronymsDHS Department of Homeland SecurityFR Federal RegisterNPRM Notice of Proposed RulemakingA. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

1. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number [USCG-2014-0148] in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

2. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2014-0148) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

3. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

4. Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

B. Regulatory History and Information

This fireworks display event is regulated at 33 CFR 165.506, Table to § 165.506, section (d.) line 2. On June 25, 2013, a Temporary Final Rule (TFR) was published amending 33 CFR 165.506, Table to § 165.506, section (d.) line 2 entitled “Safety Zone, Fifth Coast Guard District Fireworks Display Cape Fear River; Wilmington, NC” in the Federal Register (78 FR 37963). The Coast Guard plans to permanently amend the regulation at 33 CFR 165.506 at a later date to reflect this change.

C. Basis and Purpose

Recurring fireworks displays are frequently held on or adjacent to the navigable waters within the boundary of the Fifth Coast Guard District. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.

The regulation listing annual fireworks displays within the Fifth Coast Guard District and safety zones locations is 33 CFR 165.506. The Table to § 165.506 identifies fireworks displays by COTP zone, with the COTP North Carolina zone listed in section “(d.)” of the Table.

The Battleship NORTH CAROLINA Commission has relinquished sponsorship to the City of Wilmington for the annual fireworks display held on July 4 over the waters of Cape Fear River at Wilmington, North Carolina. The Table to § 165.506, at section (d.) event Number “2”, describes the enforcement date and regulated location for this fireworks event.

The location listed in the Table has the fireworks display originating from a location, on land, on the north bank of the Cape Fear River at Wilmington, North Carolina. However, the coordinator for this event changed the fireworks launch location for July 4, 2014, to a position on the Cape Fear River at latitude 34°14′17″ N longitude 077°57′11″ W.

A fleet of spectator vessels is anticipated to gather nearby to view the fireworks display. Due to the need for vessel control during the fireworks display vessel traffic will be temporarily restricted to provide for the safety of participants, spectators, and transiting vessels. Under provisions of 33 CFR 165.506, during the enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

D. Discussion of Proposed Rule

The Coast Guard is proposing to temporarily suspend the regulation listed in Table to § 165.506, section (d) event Number 2, only in regards to the July 4th event, and insert this temporary regulation at Table to § 165.506, at section (d) as event Number “15”, in order to reflect that the fireworks display will originate from a barge in the Cape Fear River and therefore the regulated area is changed. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 165.506 or other provisions in § 165.506 shall be affected by this regulation.

The regulated area of this safety zone includes all waters of the Cape Fear River within a 300 yards radius of latitude 34°14′17″ N longitude 077°57′11″ W.

This safety zone will restrict general navigation in the regulated area during the fireworks event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the effective period. The regulated area is needed to control vessel traffic during the event for the safety of participants and transiting vessels.

The enforcement period for this safety zone does not change from that enforcement period listed in § 165.506(d)2. Therefore, this safety zone will be enforced from 5:30 p.m. on July 4, 2014 through 1 a.m. on July 5, 2014.

In addition to notice in the Federal Register, the maritime community will be provided extensive advance notification via the Local Notice to Mariners, and marine information broadcasts so mariners can adjust their plans accordingly.

E. Regulatory Analyses

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation restricts access to a small segment of the Cape Fear River, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited duration; (ii) the zone is of limited size; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. Additionally, this rulemaking changes the regulated area for the Cape Fear River fireworks demonstration for July 4, 2014 only and does not change the permanent regulated area that has been published in 33 CFR 165.506, Table to § 165.506 at portion “d” event Number “2”. In some cases vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the Cape Fear River where fireworks events are being held. This regulation will not have a significant impact on a substantial number of small entities because it will be enforced only during the fireworks display event that has been permitted by the Coast Guard Captain of the Port. The Captain of the Port will ensure that small entities are able to operate in the regulated area when it is safe to do so. In some cases, vessels will be able to safely transit around the regulated area at various times, and, with the permission of the Patrol Commander, vessels may transit through the regulated area. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

4. Collection of Information

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the For Further Information Contact section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a safety zone for a fireworks display launch site and fallout area and is expected to have no impact on the water or environment. This zone is designed to protect mariners and spectators from the hazards associated with aerial fireworks displays. This rule is categorically excluded from further review under paragraph 34 (g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Environmental Protection Agency (EPA) is proposing to revise the regulatory definition of volatile organic compounds (VOCs) under the Clean Air Act (CAA). This proposed revision would add 2-amino-2-methyl-1-propanol (also known as AMP; CAS number 124-68-5) to the list of compounds excluded from the regulatory definition of VOCs on the basis that this compound makes a negligible contribution to tropospheric ozone formation. In the “Rules and Regulations” section of this Federal Register, we are making this same amendment as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule.

DATES:

Comments must be received on or before May 27, 2014.

Public Hearing: If anyone contacts the EPA requesting a public hearing concerning the proposed regulation by April 11, 2014, we will hold a public hearing on April 28, 2014. If a public hearing is held, it will be held at 10 a.m. at Building C on the EPA campus in Research Triangle Park, NC, or at an alternate site nearby. Please refer to SUPPLEMENTARY INFORMATION for additional information on the comment period and the public hearing.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2013-0775, by one of the following methods:

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2013-0775. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov, or email. The www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Docket ID No. EPA-HQ-OAR-2013-0775, EPA/DC, William Jefferson Clinton West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742.

Table of ContentsI. General InformationA. Why is the EPA using a direct final rule?B. Where can I get a copy of this document and other related information?C. What should I consider as I prepare my comments for the EPA?D. How can I find information about a possible public hearing?II. Proposed RuleIII. Statutory and Executive Order ReviewsA. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory ReviewB. Paperwork Reduction ActC. Regulatory Flexibility ActD. Unfunded Mandates Reform ActE. Executive Order 13132: FederalismF. Executive Order 13175: Consultation and Coordination With Indian Tribal GovernmentsG. Executive Order 13045: Protection of Children From Environmental Health and Safety RisksH. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or UseI. National Technology Transfer and Advancement ActJ. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income PopulationsI. General InformationA. Why is the EPA using a direct final rule?

We are publishing a direct final rule in the “Rules and Regulations” section of this Federal Register because we view this action as a noncontroversial action and anticipate no adverse comment.

B. Where can I get a copy of this document and other related information?

In addition to being available in the docket, an electronic copy of this proposal will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this action will be posted on the EPA's Web site www.epa.gov/ttn/oarpg/new/html.

C. What should I consider as I prepare my comments for the EPA?

Submitting CBI: Do not submit this information to the EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

D. How can I find information about a possible public hearing?

Public Hearing: If anyone contacts the EPA requesting to present oral testimony at a public hearing concerning the proposed regulation by April 11, 2014, we will hold a public hearing on April 28, 2014. If a public hearing is held, it will be held at 10 a.m. at Building C on the EPA campus in Research Triangle Park, NC, or at an alternate site nearby. Persons interested in presenting oral testimony must contact Sherry Russell, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C504-02, Research Triangle Park, NC 27711; telephone: (919) 541-0306; fax number: (919) 541-2464; email address: russell.sherry@epa.gov, no later than April 11, 2014. Persons interested in attending the public hearing if one is held must also call Ms. Russell to verify the time, date and location of the hearing. If no one contacts Ms. Russell by April 11, 2014 with a request to present oral testimony at the hearing, we will cancel the hearing. To find out if a hearing has been requested, please check the EPA's Web site www.epa.gov/ttn/oarpg/new/html for further information, or contact Ms. Sherry Russell at russell.sherry@epa.gov.

II. Proposed Rule

This proposed action would revise the EPA's regulatory definition of VOCs for purposes of preparing SIPs to attain the NAAQS for ozone under title I of the CAA, by adding AMP to the list of compounds excluded from the regulatory definition of VOCs on the basis that this compound makes a negligible contribution to tropospheric ozone formation.1 We have explained our reasons for this action in the preamble to the direct final rule. The regulatory text for the proposal is identical to that for the direct final rule published in the “Rules and Regulations” section of this Federal Register. For further supplementary information, the detailed rationale for the proposal and the regulatory revisions, see the direct final rule published under “Rules and Regulations” of this Federal Register.

1 2-amino-2-methyl-1-propanol (AMP) is also known as Isobutanolamine and CAS No. 124-68-5.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule, and take further action on this proposed rule. We would address all public comments in any subsequent final rule based on this proposed rule.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information in the ADDRESSES section of this document.

III. Statutory and Executive Order ReviewsA. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993), and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). It does not contain any recordkeeping or reporting requirement.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

For purposes of assessing the impacts of this notice on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards. (See 13 CFR 121.); (2) A governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) A small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This proposed rule would remove AMP from the regulatory definition of VOCs and thereby relieve users of the compound from requirements to control emissions of the compound. We have therefore concluded that today's proposed rule would relieve regulatory burden for all affected small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This proposed rule would remove AMP from the regulatory definition of VOCs and thereby relieve users of the compound from requirements to control emissions of the compound.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule would remove AMP from the regulatory definition of VOCs and thereby relieve users of the compound from requirements to control emissions of the compound. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It would not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. This proposed rule would remove AMP from the regulatory definition of VOCs and thereby relieve users of the compound from requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866. While this proposed rule is not subject to the Executive Order, the EPA has reason to believe that at higher concentrations ozone has a disproportionate effect on active children who play outdoors (62 FR 38856; 38859, July 18, 1997). The EPA has not identified any specific studies on whether or to what extent AMP may affect children's health. The public is invited to submit comments or identify peer-reviewed studies and data, of which the EPA may not be aware, that assess results of early life exposure to the chemical compound herein.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use

This action is not a “significant energy action” as defined in Executive Order 13211, (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This proposed rule would remove AMP from the regulatory definition of VOCs and thereby relieve users of the compound from requirements to control its emissions.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d), (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Therefore, the EPA has not considered the use of any voluntary consensus standards.

Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.

The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it would not affect the level of protection provided to human health or the environment.

The Environmental Protection Agency (EPA) proposes to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania, which consists of a second limited maintenance plan for the carbon monoxide (CO) Pittsburgh Area (“the Pittsburgh Area” or “the Area”) in Allegheny County, formerly designated as a CO nonattainment area. In the Final Rules section of this Federal Register, EPA is approving the Commonwealth's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

DATES:

Comments must be received in writing by April 28, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0248 by one of the following methods:

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2012-0248. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105 and at the Allegheny County Health Department, Bureau of Environmental Quality, Division of Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 15201.

FOR FURTHER INFORMATION CONTACT:

Emlyn Vélez-Rosa, (215) 814-2038, or by email at velez-rosa.emlyn@epa.gov.

SUPPLEMENTARY INFORMATION:

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

The Environmental Protection Agency (EPA) Region 4 is issuing a Notice of Intent to Delete the Coleman-Evans Wood Preserving Superfund Site (Site) located in Whitehouse, Florida, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Florida, through the Florida Department of Environmental Protection (FDEP), have determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.

DATES:

Comments must be received by April 28, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1983-0002, by one of the following methods:

• Hand Delivery: 61 Forsyth Street SW., Atlanta, GA 30303-8909. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-1983-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statue. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at: 61 Forsyth St. SW., Atlanta, GA 30303-8960; or the local document repository at the West Regional Jacksonville Public Library, 1425 Chaffee Rd S., Jacksonville, FL 32221.

In the “Rules and Regulations” Section of today's Federal Register, we are publishing a direct final Notice of Deletion of Coleman-Evans Wood Preserving Superfund Site without prior Notice of Intent to Delete because we view this as a noncontroversial revision and anticipate no adverse comment. We have explained our reasons for this deletion in the preamble to the direct final Notice of Deletion, and those reasons are incorporated herein. If we receive no adverse comment(s) on this deletion action, we will not take further action on this Notice of Intent to Delete. If we receive adverse comment(s), we will withdraw the direct final Notice of Deletion, and it will not take effect. We will, as appropriate, address all public comments in a subsequent final Notice of Deletion based on this Notice of Intent to Delete. We will not institute a second comment period on this Notice of Intent to Delete. Any parties interested in commenting must do so at this time.

For additional information, see the direct final Notice of Deletion which is located in the Rules section of this Federal Register.

The Environmental Protection Agency (EPA) Region III is issuing a Notice of Intent to Delete the Moyer's Landfill Superfund Site (Site) located in Lower Providence Township, Montgomery County, Pennsylvania, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), have determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.

DATES:

Comments must be received by April 28, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1983-0002, by one of the following methods:

• Hand Delivery: U.S. Environmental Protection Agency, Region III, Attn: Sharon Fang (3HS21), 1650 Arch Street, Philadelphia, PA 19103-2029; Phone: 215-814-3018; Business Hours: Mon. thru Fri.—9:00 a.m. to 4:00 p.m. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-1983-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket

All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:

In the “Rules and Regulations” Section of today's Federal Register, we are publishing a direct final Notice of Deletion of the Moyer's Landfill Superfund Site without prior Notice of Intent to Delete because EPA views this as a noncontroversial revision and anticipates no adverse comment. We have explained our reasons for this deletion in the preamble to the direct final Notice of Deletion, and those reasons are incorporated herein. If we receive no adverse comment(s) on this deletion action, we will not take further action on this Notice of Intent to Delete. If we receive adverse comment(s), we will withdraw the direct final Notice of Deletion and it will not take effect. We will, as appropriate, address all public comments in a subsequent final Notice of Deletion based on this Notice of Intent to Delete. We will not institute a second comment period on this Notice of Intent to Delete. Any parties interested in commenting must do so at this time.

For additional information, see the direct final Notice of Deletion, which is located in the Rules section of this Federal Register.

In this document, the Commission issues a Further Notice of Proposed Rulemaking (FNPRM) seeking comment on options and proposals to further enhance accessibility to television programming and to improve the Commission's procedural rules regarding closed captioning.

DATES:

Comments on the section entitled Responsibilities for Meeting the Closed Captioning Requirements (paragraphs 1-8) are due on or before April 28, 2014, and reply comments are due on or before May 27, 2014. Comments on remaining sections are due on or before June 25, 2014, and reply comments are due on or before July 25, 2014.

ADDRESSES:

You may submit comments, identified by CG Docket No. 05-231, by any of the following methods:

Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS), through the Commission's Web site http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, in completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and CG Docket No. 05-231.

• Paper filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial Mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.

In addition, parties must serve one copy of each pleading with the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, or via email to fcc@bcpiweb.com.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

This is a summary of the Commission's Closed Captioning of Video Programming; Telecommunications for the Deaf and Hard of Hearing, Inc. Petition for Rulemaking, Further Notice of Proposed Rulemaking (FNPRM), document FCC 14-12, adopted on February 20, 2014 and released on February 24, 2014, in CG Docket No. 05-231. In document FCC 14-12, the Commission adopted an accompanying Report and Order (Report and Order), which is summarized in a separate Federal Register Publication. The full text of document FCC 14-12 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet: www.bcpiweb.com. Document FCC 14-12 can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/encyclopedia/disability-rights-office-headlines. http://www.fcc.gov/encyclopedia/closed-captioning-video-programming-television. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) of the Commission's rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Initial Paperwork Reduction Act of 1995 Analysis

Document FCC 14-12 seeks comment on potential new information collection requirements. If the Commission adopts any new information collection requirements, the Commission will publish another notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

1. The Commission has previously placed direct responsibility for compliance with the closed captioning requirements on VPDs. Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, MM Docket No. 95-176, Report and Order, (1997 Closed Captioning Report and Order); published at 62 FR 48487, September 16, 1997, reconsideration granted in part, MM Docket No. 95-176, Order on Reconsideration, (Closed Captioning Reconsideration Order); published at 63 FR 55959, October 20, 1998. The Commission seeks comment on whether the Commission should extend some of the responsibilities for compliance with the Commission's closed captioning quality standards for programming shown on television to video programmers, which are a subset of video programming providers (VPPs). In the television captioning context, VPPs include VPDs as well as video programmers, i.e., “any other entity that provides video programming that is intended for distribution to residential households including, but not limited to broadcast and non-broadcast television network and the owners of such programming.” See 47 CFR 79.1(a)(3). In the Report and Order, the Commission defines a video programmer as “entities that provide video programming that is intended for distribution to residential households including, but not limited to, broadcast or non-broadcast television networks and the owners of such programming.” The Commission also seeks comment on whether this definition is sufficiently broad in scope to hold accountable all entities with direct control over caption quality or whether the Commission should expand the definition to cover other categories of entities and, if so, what other entities should be covered. Commenters advocating covering other entities should address the Commission's authority to regulate those entities.

2. In addition to VPPs, the definition of video programmers includes “the owners of such programming.” The Commission has defined the term video programming owners (VPOs) for purposes of ensuring captions on video programming delivered via Internet protocol, but not for purposes of delivering television programs with captions. The Commission seeks comment on whether the Commission should define the term VPO for purposes of the television closed captioning rules. The Commission seeks comment on an appropriate definition for VPOs in the television context with respect to the provision of closed captioning. For example, should the Commission include in the definition of VPO a person or entity that licenses video programming to a video programming distributor or provider that makes the video programming available directly to the end user? What other entities should be covered under the definition of VPO in this context, and why?

3. Some interested parties support extension of the responsibility for caption quality to other entities in the captioning chain, in addition to VPDs, in the television context. For example, Comcast/NBCUniversal (Comcast) proposes adopting a “burden-shifting enforcement model” that extends some captioning responsibilities to VPOs. It appears that the category of VPOs Comcast proposes to reach would be covered under the Commission's definition of “video programmers” as defined in the accompanying Report and Order, i.e., “entities that provide video programming that is intended for distribution to residential households including, but not limited to, broadcast or non-broadcast television networks, and the owners of such programming.” The Comcast proposal would give a VPD the initial burden of addressing and investigating matters brought to its attention concerning the closed captioning quality rules adopted in the accompanying Report and Order. If the problem at issue relates to the pass-through of captions or the VPD's equipment, the VPD would be responsible for fixing it and bear any associated liability in an enforcement proceeding if one were to be initiated, because these are problems within the VPD's direct control. If, however, the VPD learns that the problems raised are within the control of the VPO, the compliance burden would shift to the VPO, which would be charged with fixing the problem and bear any associated liability in an enforcement proceeding.

4. The Commission seeks comment on Comcast's burden-shifting proposal and whether it would result in an appropriate allocation of responsibilities for addressing failures to meet the Commission's captioning quality rules. Is this approach likely to achieve a prompter and more effective resolution of captioning quality problems brought to the VPD's attention? Will this model provide strong incentives for the various parties associated with program production and delivery to work cooperatively to improve captioning quality, as suggested by Comcast? Finally, the Commission notes that under the Comcast proposal, a VPD would be relieved of any liabilities associated with captioning problems once it determined that the problems raised are within the control of the VPO. The Commission seeks comment on how the Commission can be assured that when responsibility for captioning problems are shifted to other programming entities, VPDs will have appropriately transferred such liability. Should each VPD be obligated to report to the Commission when they shift this burden, with information about the results of its initial investigation to warrant this shift? Should the VPD remain jointly responsible with the programmer after informing the programmer about the need for the programmer to address the problem? The Commission asks commenters generally to provide input on the advantages and disadvantages of adopting Comcast's proposal, including its feasibility, as well as the costs and benefits of shifting responsibility for direct compliance with the Commission's closed captioning requirements to other entities responsible for the production and delivery of video programming.

5. Are there other approaches the Commission should consider using to apportion responsibilities for compliance with the television caption quality rules among entities involved in the production and delivery of video programming? Should any changes to the apportionment of these responsibilities apply generally to all captioning obligations, or only to the newly adopted captioning quality rules? To what extent should responsibilities be joint and several among specific entities? For example, is it preferable to place the ultimate responsibility for compliance with a single entity or are there benefits to imposing joint responsibility on or dividing up responsibility among the responsible entities? What effect would the sharing of obligations across multiple entities have on consumers and industry, and to what extent can any negative effects be mitigated?

6. The Commission also seeks comment on the effect, if any, that extending responsibility for compliance to entities other than VPDs would have on the Commission's ability to efficiently monitor and enforce the closed captioning television rules. To what extent would the Commission's earlier predictions that VPDs would privately negotiate with VPOs and other VPPs regarding “an efficient allocation of captioning responsibilities” and that VPOs and other VPPs would “cooperate with distributors to ensure that nonexempt programming is closed captioned in accordance with [the Commission's] rules” apply to the caption quality context? In the IP captioning context, the Commission determined that although VPDs and VPOs may enter into private contracts placing some obligations on VPOs, leaving VPOs' responsibilities to be defined entirely by private contractual arrangements would be more costly and less efficient than appropriately allocating certain responsibilities among both VPOs and VPDs by Commission rule. IP Captioning Report and Order Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket No. 11-154, Report and Order, (IP Captioning Report and Order); published at 77 FR 19480, March 30, 2012. Would a division of responsibilities for caption quality in the television context reduce or improve the Commission's efficiencies in overseeing the captioning rules? Is there a “liability gap” left by the Commission's decision in the 1997 Closed Captioning Report and Order to limit regulatory oversight to VPDs that needs to be addressed with respect to the general implementation of the Commission's television captioning rules by extending regulatory oversight to VPOs, video programmers or other entities? For example, as noted above, § 79.1(g)(6) of the Commission's rules permits VPDs to rely on certifications from programming suppliers to demonstrate compliance with the Commission's captioning requirements. 47 CFR 79.1(g)(6). Will imposing shared responsibilities on other entities in the programming chain help to alleviate concerns that could arise if a VPD relies on such certifications without taking any additional steps to ensure that the programming at issue has in fact been delivered to the consumers with the captions intact and of a quality that now meets the Commission's captioning quality standards?

7. To the extent the Commission decides to impose some obligations directly on other programming entities, the Commission also seeks comment on whether any other changes to the rules or Best Practices adopted in the Report and Order are appropriate. For example, if the Commission extends obligations for compliance with the captioning quality standards directly to programmers, should the Commission allow such programmers to assert a safe harbor, which could then entitle them to take corrective actions to demonstrate compliance prior to being subject to enforcement action—akin to the compliance ladder adopted for stations in compliance with the new enhanced ENT procedures? Should the Commission similarly allow VPDs to assert a safe harbor, which would also entitle them to take corrective actions to demonstrate compliance prior to being subject to enforcement action, in the event certain obligations for compliance with the captioning quality standards are placed on VPDs? If the Commission were to extend direct compliance responsibility with its closed captioning requirements to video programmers or other programming entities, would it no longer be necessary to include § 79.1(g)(6) in the Commission's rules? In addition, the Commission seeks comment on whether there are similarities or differences between the television and the IP closed captioning contexts or the Commission's emergency information rule that justify similar or different regulatory approaches. The Commission seeks comment on any other issues related to extending some or all responsibility for compliance with the Commission's closed captioning requirements to other programming entities and asks commenters to address the costs and benefits of making any such adjustments to the Commission's rules.

8. Finally, the Commission invites parties generally to provide any information that they believe will contribute to a better understanding about which entities are ultimately better positioned to ensure compliance with the Commission's captioning quality standards.

Minimum Captioning Quality Standards

9. Live Programming. The Commission seeks comment on technical solutions for improving the synchronicity between the audio track and captions on live programming to facilitate understanding of a program's content. For example, would providing the captioner advance delivery of the audio by a few seconds help to reduce captioning latency? The Commission asks commenters to provide input on this and other techniques to achieve greater synchronicity, and to explain how the incremental costs and burdens of utilizing any of the techniques they propose compare with the benefits of greater accessibility to television programming. The Commission asks commenters to indicate whether VPDs, programmers or other entities should be responsible for implementing such technical solutions.

10. The Commission also seeks additional information about methods to provide captions that capture the entirety of the program's aural content, including, for example (1) sending the audio feed to the live captioner in a way that alerts the captioner that the program's end is imminent, so that the captioner can paraphrase or abbreviate the remaining text before the program cuts off; (2) fading out the program after its last scene to add a few seconds for the transition to the next program or commercial content; (3) providing advance delivery of the audio to captioners by a few seconds; and (4) allowing captions remaining at the end of a program's audio to be placed in a location on the screen during the subsequent advertisement (or program) in a manner that does not overlap with the captions on that advertisement or program. The Commission seeks comment on the feasibility, costs and other concerns associated with requiring the use of one or more of these techniques to ensure that captioning of live programming is complete. Are there other technologies or techniques in addition to these that the Commission should consider requiring for this purpose, and if so, what are their costs, benefits and technical feasibility? If the Commission adopts more specific latency requirements, should the Commission also identify any exceptions for circumstances where it is not possible to ensure completeness, and if so, what circumstances would those be? If the Commission requires any new methods to ensure that captions capture the entirety of the program's aural content, should VPDs, programmers or other entities be responsible for implementing these methods? Finally, the Commission asks commenters to explain how the incremental costs and burdens of utilizing any of the techniques they propose compare with the benefits of greater accessibility to television programming.

11. Near-Live Programming. In the Report and Order, the Commission identifies measures that are likely to result in an improved quality of captions for both near-live programming and rebroadcasts of live programming, including programmers providing an advance script, a near-completed program, or a live feed of the advance taping to a captioning agency, which the agency can then use to create a caption file that is later combined simultaneously with the program when it is aired. The Commission seeks comment on whether there are other measures in addition to these that can be used to improve the quality of near-live programming, as well as whether the Commission should require any such measures. In this regard, the Commission requests input on the feasibility, costs and other concerns that would be associated with such requirements, and how those compare with the benefits of greater accessibility to television programming. The Commission asks commenters to indicate how to apportion responsibilities among VPDs, programmers or other entities for ensuring compliance with any measures adopted to improve the quality of near-live programming.

12. The Commission also seeks comment on whether its current definition of near-live programming is appropriate for purposes of the quality standards that the Commission adopted in the Report and Order. Commission rules pertaining to the IP captioning requirements currently define near-live programming as programming that is performed and recorded within 24 hours prior to when it is first aired on television. 47 CFR 79.4(a)(8). Consumer Groups recommend that the Commission “presumptively limit `near-live' programming to programming recorded and performed less than double its length prior to air—e.g., two hours before the airing of a one-hour program—and deem `pre-recorded' all programming recorded and performed more than double its length prior to air.” Consumer Groups also recommend that the Commission require the use of offline captioning where doing so is achievable and that “VPDs delivering near-live programming using real-time captions maintain records of the reason that offline captioning is not achievable.”

13. Although consumers recommend that VPDs be required to maintain such records, it may be more appropriate for programmers who are directly responsible for the delivery of programs with captions to bear this obligation. The Commission seeks comment on establishing such a requirement, as well as the other proposals made by the Consumer Groups. Is the Commission's current definition of near-live programming adequate to achieve the goal of promoting caption quality? Is it technically and financial feasible to caption programming performed less than 24 hours prior to air offline instead of in real-time? Is the Consumer Groups' proposal to limit near-live programming to programming recorded and performed less than double its length prior to air feasible? Does it better promote quality captioning? The Commission also seeks specific cost information on the impact of changing the definition of near-live programming for purposes of the Commission's caption quality rules.

14. Live and Near-Live Program Re-feeds. For live and near-live programs that were originally captioned using real-time captioning techniques but that are later re-aired on television after the effective date of the caption quality standards, the Commission asks whether the Commission should require the use of offline captioning or other measures that the Commission encouraged in the Report and Order to improve the quality of closed captioning. For example, should the Commission adopt a requirement to correct errors inadvertently made and timing lags that occurred when the program was first aired with real-time captions? Are there other measures that can be taken between the time of the first and subsequent showings that can help improve the caption viewer experience of such programs? If any rules were to be adopted requiring correction of captioning errors and timing lags on re-feeds of live and near-live programming, should such rules include threshold error rates or time lags before correction is required, and if so what should those thresholds be? The Commission asks commenters to provide feedback on the feasibility, costs and burdens that would be associated with such requirements to take certain measures to improve captions on re-feeds, and to compare these with the benefits of greater accessibility to television programming. The Commission also seeks input on the minimum interval needed between the original airing and the re-feed that would make such measures feasible. Finally, the Commission seeks comment on who should be responsible for implementing measures that will improve the accuracy, synchronicity, completeness and placement of captions on program re-feeds—VPDs, programmers, or other entities.

Use of Electronic Newsroom Technique by Non-Broadcast Channels

15. The Commission seeks comment on whether to apply the ENT requirements adopted for broadcasters in the Report and Order to non-broadcast networks. What effect, if any, will these proposals have on the availability of news and public affairs programming as well as other live programming on non-broadcast networks serving less than 50 percent of all homes subscribing to MVPD services? What are the benefits and disadvantages of these proposals for consumers seeking full access to news programming? The Commission also seeks other information that will help the Commission to assess the costs and benefits if it were to apply these proposed obligations on non-broadcast networks.

Compliance

16. Technical Equipment Checks. The Commission seeks comment on whether to establish specific intervals by which equipment checks codified in the Report and Order should take place and, if so, how frequently these checks should be performed to ensure that captioning is reliably delivered and video programming is fully accessible to consumers. The Commission seeks comment on the extent to which measures other than regular equipment checks, such as automated technologies that can be used to ensure that captions are passed through to consumers, should be permitted as alternative methodologies for monitoring. Commenters are asked to weigh the costs of these proposals as well as the costs of particular time intervals against the benefits of increasing reliable access to video programming by people who are deaf and hard of hearing.

17. Resolution of Consumer Complaints. The National Cable and Telecommunications Association (NCTA) proposes in its Best Practices that VPDs take the following actions designed to improve the prompt resolution of consumer's captioning concerns.

• Consumer care awareness and training. Maintain consumer support and escalation for captioning issues and provide targeted information or conduct training for customer care agents or television station personnel, as appropriate, to help with and assist in the resolution of caption quality and other captioning support issues.

• Identification and remediation of recurring captioning issues. Make reasonable efforts to identify consumer complaints received about captioning issues and periodically review these complaints to identify and resolve recurring captioning problems.

The Commission seeks comment on whether to adopt these practices noted above. The Commission asks commenters to address their experiences with the resolution of complaints filed directly with VPDs and whether adherence to the above practices would affect either positively or negatively the resolution of such complaints. The Commission asks commenters to also address the costs and benefits of requiring VPDs to implement these complaint handling practices.

18. Consumer Groups recommend that the Commission provide the public with information about all captioning-related complaints as part of a Commission-wide “dashboard.” The Commission seeks comment on having the Commission make such information available to the public.

19. Outages. The Commission seeks comment on whether VPDs should be required to notify both consumers and the Consumer and Governmental Affairs Bureau (CGB) when captioning outages occur. Such outage reporting would only be required where there is an underlying obligation to provide captions, not where programming entities are exempt or otherwise excused from the captioning obligations. Given that some programming is exempt from the Commission's captioning rules, the Commission also seeks comment on whether and how consumers should be informed when captions are not required on particular programs. The Commission also seeks input on the duration and frequency of outages that should trigger any notification requirements. The Commission requests that parties provide comments on the practical and technical feasibility of notifying the public of a captioning outage on VPD Web sites and via periodic crawls on affected programs. For example, to what extent do the causes of outages impact the ability of the VPD to notify customers of the outage? Should VPDs be required to provide timely updates of service status that they are working on so that consumers are aware while watching the program? In this regard, the Commission also seeks comment about the length of time it generally takes to repair an outage after it has been discovered. Next, the Commission seeks comment on the appropriate passage of time after such outage commences before a VPD should be required to notify consumers and the Commission that an outage has occurred. VPDs should also comment on how they can become aware of captioning outages and how that will affect their ability to notify consumers. How do the costs and burdens of providing such notifications compare with the benefits of greater consumer access to information about captioning outages?

20. The Commission also seeks comment on whether the Commission should require the VPD to submit an outage report to CGB, on the contents and timing of such a report, and how the report should be filed. What minimum outage time should trigger the filing of a report? If outage reports are required, what information should be included in the report? For example, should it include a list of the VPD's affected programs, the geographic locations affected by the outage, the dates and times for the start and end of the outage, and the cause of the outage? If the outage lasts for more than one day, should the VPD be required to seek out other captioning sources while repairing equipment? How soon after the outage starts and ends should the report be filed with CGB? As an alternative to submitting outage reports, should VPDs be required to maintain records of their outages and for what length of time? How do the costs and burdens of filing captioning outage reports with CGB or keeping outage records compare with the benefits of achieving improved enforcement of the closed captioning obligations for consumers? In addition, the Commission notes that the obligation under § 79.2 of the Commission's rules to make emergency information visually accessible exists even if closed captioning is not available, and that the VPD may use scrolls, crawls, or other visual alternatives to fulfill that obligation. See 47 CFR 79.2. The Commission also notes that it does not intend for the notification and reporting requirements proposed herein to relieve VPDs of their obligations to prevent foreseeable and avoidable situations created by inaction or delay. Finally, the Commission asks interested parties to provide comment on how any responsibilities associated with the outage reporting obligations should be apportioned among VPDs, programmers, program owners, or other entities.

21. Amending § 79.1(i)(3) of the Commission's Rules to Require All Contact Information Be Submitted to the VPD Registry. Over the past three years, the Commission has found that the VPD Registry offers the most efficient and accurate means of collecting VPD contact information for the receipt and handling of immediate captioning concerns raised by consumers while they are watching television as well as for closed captioning complaints. The Commission proposes to amend its rules to require VPD contact information required under § 79.1(i)(1) and (2) of the Commission's rules to be submitted to the Commission directly to the VPD Registry through the web form method and seeks comment on this proposal. How do the costs of transitioning to a mandatory web form method of filing compare with the ease and accuracy of filing and benefits derived from such mandatory system?

22. Treatment of Consumer Complaints by a VPD that Is Not the Responsible Party. In the 2008 Closed Captioning Decision, the Commission adopted § 79.1(g)(3) of the Commission's rules, 47 CFR 79.1(g)(3), which requires a VPD that receives a closed captioning complaint for a program for which it does not have closed captioning responsibility, to forward that complaint to the responsible entity within seven days of receiving the complaint, and then to notify the complainant that the complaint was forwarded. 2008 Closed Captioning Decision. On June 10, 2009, Time Warner Cable (Time Warner) filed an ex parte letter identifying potential conflicts between the Commission's amended § 79.1(g)(3) and the obligations of cable companies to protect a subscriber's privacy under section 631(c)(1) of the Act. 47 U.S.C. 551(c)(1).

23. On December 11, 2009, the Commission released an Order temporarily staying the effective date of the forwarding provision of amended § 79.1(g)(3) of the Commission's rules. See Closed Captioning of Video Programming, CG Docket No. 05-231, Order Suspending Effective Date, (2009 Suspension Order); published at 75 FR 7369, February 19, 2010. Noting the potential conflict between amended § 79.1(g)(3) of the Commission's rules and sections 631(c) and 338(i)(4) of the Act (the latter creating the same prohibitions for satellite providers), the Commission found good cause to temporarily suspend the effective date for § 79.1(g)(3) of the Commission's rules, pending the completion of further rulemaking proceedings to determine how closed captioning complaints sent to the incorrect entity should be handled.

24. In order for a third party video programming provider to respond to a forwarded complaint, that complaint must include the complainant's name, address, telephone number and other personally identifiable information. Yet, sections 631(c) and 338(i)(4) of the Act appear to prohibit the forwarding of such information without the complainant's consent.

25. Accordingly, the Commission proposes amending § 79.1(g)(3) of the Commission's rules to require that within seven days after a VPD receives a complaint regarding programming of a broadcast television licensee or programming over which the VPD does not exercise editorial control, it be required to notify the complainant—using the complainant's preferred method of communication—of the appropriate party to whom the complaint should be sent, and give the complainant the option of either (1) asking the VPD to forward the complaint to the appropriate party electronically or in writing, or (2) submitting the complaint directly to the appropriate party on his or her own. In addition, the Commission proposes that the VPD, after taking such action, inform the Commission that it has so notified the complainant by providing the Commission with copies of all written or electronic correspondence or a written description of all communications that were not either in electronic or written form. Under this proposal, if the VPD is asked by the complainant to forward the complaint to the appropriate party, the VPD would be required to do so within seven days of receiving such request, and if the VPD is not asked to forward the complaint, it would have no further responsibility. The Commission seeks comment on these proposals, including whether the second prong of the proposed requirement—requiring the VPD to notify the Commission that it has informed the complainant of the available options—would itself be a violation of sections 631(c)(1) and 338(i)(4) of the Act in instances where the consumer files his or her complaint with the VPD only and does not authorize the VPD to provide a copy to the Commission. If the Commission decides to require the VPD to notify it, the Commission seeks comment on the method a VPD must use to notify the Commission. How do the costs of forwarding complaints upon consumer request and notifying the Commission of actions taken compare with the benefits of providing a consumer-friendly way to get the complaints to the correct parties? Finally, the Commission requests commenters to submit any alternative proposals for amending § 79.1(g)(3) of the Commission's rules to avoid breaching the consumer protections contained in sections 631(c)(1) and 338(i)(4) of the Act.

Captioning Exemptions

26. Elimination of the New Network Exemption. The Commission seeks comment on the merits of continuing to allow all new networks to receive a four year exemption from the closed captioning rules. See 47 CFR 79.1(d)(9). Should newly launched networks build the costs of captioning into their business plans during the planning of their networks? If the Commission were to eliminate the new network exemption, should the Commission adopt a phase-in period to provide an opportunity for networks that are about to commence operations to plan for the required captioning? If so, what should this phase-in be? The Commission seeks comment on the costs and benefits of eliminating the new network exemption.

27. As an alternative, the Commission seeks comment on modifying the new network exemption. Currently, the exemption is for four years. Would a one or two year exemption be more appropriate? The Commission seeks comment on these or any other time periods that might be appropriate for a revised new network exemption. Even if the Commission retains the new network exemption, should the exemption apply only to new networks that have certain other indicia of a start-up network, e.g., local or regional in nature, accessible by a small number of households, and ownership by a small business? If the Commission takes this approach, how does it define each of these or other proposed criteria for limiting the new network exemption? Alternatively, should networks with significant financial backing be deemed ineligible for the new network exemption? For example, should the exemption not apply to new networks that are owned, in whole or part, by one of the four major national broadcast networks or the top ten non-broadcast networks? How do the relative costs and burdens of requiring new networks to provide captioning under each of these alternatives compare with the benefits of greater accessibility to television programming?

28. If the Commission does retain this exemption, the Commission also seeks comment on the definition of “network” for purposes of the closed captioning rules. The exemption for new networks is based on the number of years that a programming network has been in operation rather than the number of subscribers. 47 CFR 79.1(d)(9). Further, this exemption applies to different types of networks—broadcast, non-broadcast, national, and regional. 1997 Closed Captioning Report and Order; see alsoClosed Captioning Reconsideration Order. To begin with, the Commission seeks comment on the extent to which it should rely on other definitions of “network,” contained elsewhere in the Commission's rules. For example, § 73.3613(a)(1) of the Commission's rules defines “network” with respect to broadcast network affiliation agreements that must be filed with the Commission as “any person, entity, or corporation which offers an interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more states.” 47 CFR 73.3613(a)(1); see also 47 CFR 76.55(f) (similar definition for purposes of the cable “must carry” rules). Alternatively, § 76.5(m) of the Commission's rules, pertaining to cable operators providing network non-duplication protection to television stations, defines a “network program” as “. . . any program delivered simultaneously to more than one broadcast station regional or national, commercial or noncommercial.” 47 CFR 76.5(m). The Commission seeks comment on whether these or a different definition of “network” would be appropriate for purposes of § 79.1(d)(9) of the Commission's rules, and whether to apply the same definition to broadcast and non-broadcast networks.

29. Next, the Commission notes that MVPDs serving U.S. subscribers increasingly offer video programming networks that were initially launched in foreign markets. In the event the Commission retains the new network exemption, the Commission seeks comment on whether a network that has operated in a foreign market and that moves to distribution or “launches” in the U.S., should be eligible for a new network exemption for a certain period of time after it launches in the U.S. and, if so, what the duration of that exemption should be. The Commission also seeks feedback on how to calculate the exemption period for such a new network, specifically, whether such network should be considered new as of the date that it begins distribution in the U.S., or whether its launch date should be considered the date that it initially began viewing in its originating country. The Commission asks commenters that believe the Commission should calculate an exemption upon moving the network's programming to the U.S. to explain why this exemption is necessary, given that such networks will have been in operation (and presumably generating revenues) and will have advance notice of U.S. captioning obligations prior to launching in the U.S. How do the costs and burdens of providing captioning on networks showing programming in the U.S. after first showing programming in foreign countries compare with the benefits of greater accessibility to television programming?

30. Last, in the event the Commission retains the new network exemption, the Commission seeks comment on the application of the new network exemption to networks created as the result of a merger of two or more existing networks. The Commission seeks comment on whether the original launch dates of networks that merged should be considered the applicable date for purposes of determining the exemption period for the merged entity. The Commission also seeks comment on which date should control in those situations where the merged entities had different original launch dates. Should the duration of the exemption be calculated based on the individual network that has been in existence for the longest period of time? Is this approach appropriate because the new network exemption applies for a limited number of years—four years under the current rules so that no component part of the combined network would have the benefit of the exemption for longer than the maximum length of time provided by the rule? The Commission also seeks comment on whether the new network exemption should apply or be extended in the event of a restructuring of a network. Because the captioning rules were promulgated sixteen years ago and each network will have known about captioning requirements since its inception, has the network had sufficient time to integrate closed captioning into its production process and costs? The Commission seeks comment on this issue including its costs and benefits.

31. Consumer Groups' 2011 Petition Requesting Elimination of Certain Self-Implementing Exemptions from the Captioning Rules. On January 27, 2011, the Consumer Groups filed a joint petition for rulemaking (2011 Petition) seeking amendment to the Commission's captioning rules regarding an exclusion and several categorical self-implementing exemptions from the obligation to caption television programming. The Consumer Groups requested, in light of modern technology, the reduced costs of captioning, and other changed circumstances, that the Commission eliminate the exclusion for advertisements of five minutes duration or less, see 47 CFR 79.1(a)(1), and the self-implementing exemptions provided for the following types of programming: Late night programming, see 47 CFR 79.1(d)(5), locally produced and distributed non-news programming with no repeat value, see 47 CFR 79.1(d)(8), interstitials, promotional announcements, and public service announcements that are 10 minutes or less in duration, see 47 CFR 79.1(d)(6), and channels producing revenues under $3 million, see 47 CFR 79.1(d)(12). The Commission seeks comment on the Consumer Groups' proposal to eliminate the advertising exclusion and the specified self-implementing exemptions from the closed captioning rules. The Commission asks commenters to address the merits as well as the costs and benefits of each proposal put forth by the Consumer Groups.

Technical Standards for the Display of Closed Captions

32. In the 2000 DTV Closed Captioning Order, the Commission adopted, with some modifications, section 9 of CEA-708, to provide guidelines for encoder and decoder manufacturers and caption providers to implement closed captioning services with digital television technology. See Closed Captioning Requirements for Digital Television Receivers; Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, ET Docket No. 99-254, MM Docket No. 95-176, Report and Order, (2000 DTV Closed Captioning Order); published at 65 FR 58467, September 29, 2000; see also 47 CFR 79.102. The standards require DTV closed caption decoders to support certain advanced features, including different caption sizes, fonts, character background and foreground colors, and other similar features, to allow viewers to customize the display of closed captions on their televisions. The Commission now seeks comment on the experiences that caption users have had since adoption of these standards, including the extent that such consumers have succeeded in using these features to improve their television experience.

33. In addition to allowing users to control the appearance of captions, CEA-708 allows programmers more options for the display of captions, such as multiple windows, fonts, and styles. The Commission seeks information on current practices for such formatting of closed captions. To what extent was the Commission correct in its earlier expectation that CEA-708 captions would be provided and its prediction that “programmers and caption providers” would have incentives to provide CEA-708 captions? To what extent are VPDs, video programmers, captioners, or other entities each involved in the production process for formatting closed captions in a manner that provides the advanced features adopted by the Commission in the 2000 DTV Closed Captioning Order, such as delivering captions in programmer-selected size, font, character background colors, and foreground colors of closed captions? What other entities are involved in the process, and how so? If VPDs, video programmers, captioners, or other entities involved in the production process are not formatting closed captions to use CEA-708 capabilities, why not? What action, if any can the Commission take to ensure the effective implementation of the CEA-708 capabilities so that television viewers who use captions can take full advantage of the capabilities this standard was intended to provide?

Caption Obstructions

34. Some caption viewers have raised concerns about closed captions being partially or completely blocked by other visual information, such as graphics, that appear on the screen. The Commission seeks comment on the extent to which on-screen visual changes or textual depictions, including, but not limited to, split screens, pop-on advertisements and promotions, credits, graphic overlays, or contact information, have caused a problem for caption viewers. To the extent that these problems exist, the Commission asks for comment on their causes and possible solutions.

New Technologies

35. Captioning on 3D Television Programming. To better understand current practices and capabilities with regard to closed captioning of 3D TV programming, the Commission seeks comment on the following:

• How are DTV manufacturers ensuring that captions continue to work when 3D TV programming is shown on television sets with 3D capability?

• Are there issues regarding the placement of captions in a 3D picture? What steps must manufacturers take to ensure that captioning in 3D TV programming is inserted and placed at an appropriate depth of field in the 3D image? Do user-selected changes to font size and location of the captions operate differently in a 3D image?

• With regard to television sets with 3D capability, will captions display properly when the user switches between 2D and 3D modes?

• How do the costs and burdens of providing closed captioning in 3D TV programming compare with the benefits of greater accessibility to television programming?

The Commission seeks input on any other matters that could affect the availability of closed captioning on 3D TV programming.

36. Captioning on Ultra High Definition Television Programming. To better understand current practices and capabilities with regard to closed captioning of Ultra HDTV programming, the Commission seeks comment on the following:

• How are Ultra HDTV manufacturers ensuring that captions continue to appear legibly when programming is shown on Ultra HDTV television sets?

• Do the standards for Ultra HDTV programming have the same capabilities for the transmission or pass-through of captions as HDTV and SDTV programming?

• Does the increased resolution present new challenges related to the display of captions, particularly with respect to font size of the captions? If so, what are these new challenges, and how can they be addressed?

• How do the costs and burdens of additional requirements concerning closed captioning for Ultra HDTV programming compare with the benefits of greater accessibility to television programming?

The Commission seeks input on any other matters that could affect the availability of closed captioning on Ultra HDTV programming.

Initial Regulatory Flexibility Certification

37. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in document FCC 14-12 FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments in document FCC 14-12. The Commission will send a copy of document FCC 14-12, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

38. In document FCC 14-12, the Commission seeks comment on (1) whether the Commission should impose some responsibilities for compliance with the Commission's closed captioning quality rules on video programmers and other entities; (2) whether the Commission should require specific measures to ensure program completeness and synchronicity for live and near-live programming and how the Commission should define near-live programming; (3) whether the Commission should require the use of offline captioning or other measures to achieve improved accuracy, synchronicity, placement and program completeness of captions prior to the re-airing of live and near-live programming first shown after the effective date of any such rule; (4) whether to apply the ENT requirements adopted for broadcasters to non-broadcast networks that use ENT and serve less than 50 percent of all MVPD homes to achieve greater accessibility to news programming; (5) whether to establish specific maximum intervals for technical equipment checks or to allow alternatives to such technical equipment checks; (6) whether to adopt a proposal for improving the prompt resolution of consumers' captioning concerns by VPDs, and whether to create a publicly available “dashboard” that would provide information about all captioning-related complaints; (7) whether to require that captioning outages be communicated to viewers in real-time and be reported to the Commission, consistent with the reporting requirements for other types of outages; (8) whether to require that all contact information already required to be submitted by VPDs to the Commission for the VPD registry be submitted using the Commission's web form system only; (9) how to amend the Commission's rules regarding the forwarding of consumer complaints to ensure subscriber privacy when the VPD receiving an informal complaint is not the responsible party; (10) whether to eliminate or retain the four-year exemption contained in § 79.1(d)(9) of the Commission's rules pertaining to new networks, and if retained, whether to reduce the term of the exemption or limit its availability based on certain criteria indicative of a start-up network, how to define network, how to calculate the start date of the network for purposes of the exemption, and whether and how the exemption should be applied to networks created as the result of a merger of two or more existing networks; (11) whether to eliminate or retain the exclusion contained in § 79.1(a)(1) of the Commission's rules for advertisements of five minutes duration or less and certain self-implementing exemptions contained in § 79.1(d) of the Commission's rules, including exemptions for late night programming, locally produced and distributed non-news programming with no repeat value, interstitials, promotional announcements, and public service announcements that are 10 minutes or less in duration, and channels producing revenues under $3 million; (12) current practices with regard to technical standards for the display of closed captioning; (13) the extent to which onscreen visual changes or textual depictions have caused a problem for caption viewers; and (14) current practices and capabilities with regard to closed captioning of 3D TV and ultra HDTV.

39. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

40. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. As of 2009, small businesses represented 99.9% of the 27.5 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” 5 U.S.C. 601(4). Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” 5 U.S.C. 601(5). Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.”

41. Cable Television Distribution Services. These services have been included within the broad economic census category of Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is all such firms having 1,500 or fewer employees. According to data from the U.S. Census Bureau for the year 2007, there were 3,188 Wired Telecommunications Carrier firms that operated for the entire year in 2007. Of these, 3,144 operated with less than 1,000 employees, and 44 operated with 1,000 or more employees.

42. Cable Companies and Systems. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. 47 CFR 76.901(e). Industry data shows that there are 1,100 cable companies. Of this total, all but 10 incumbent cable companies are small. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. 47 CFR 76.901(c). Current Commission records show 4,945 cable systems nationwide. Of this total, 4,380 cable systems have less than 20,000 subscribers, and 565 systems have 20,000 subscribers or more.

43. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” 47 U.S.C. 543(m)(2); see also 47 CFR 76.901(f) and nn.1-3. Based on available data, all but 10 incumbent cable operators are small under this size standard.

44. Direct Broadcast Satellite (DBS) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. Currently, only two entities, DIRECTV and DISH Network, provide DBS service, and neither company is a small business.

45. Wireless Cable Systems—Broadband Radio Service and Educational Broadband Service. Wireless cable systems use the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) to transmit video programming to subscribers. In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. Of the 67 auction winners, 61 met the definition of a small business, and of these 61 winners, 48 remain small business licensees. In addition, there are approximately 392 incumbent BRS licensees that are considered small entities. Accordingly, there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86 for the sale of 78 BRS licenses, and established three categories of small businesses: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years is a small business; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years is a very small business; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years is an entrepreneur. Of the 10 winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

46. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which is all such businesses having 1,500 or fewer employees. According to Census Bureau data for 2007, there were 3,188 Wired Telecommunications Carrier firms that operated for the entire year in 2007. Of these, 3,144 operated with less than 1,000 employees, and 44 operated with 1,000 or more employees. In addition to Census Bureau data, the Commission's internal records indicate that as of September 2012, there are 2,239 active EBS licenses. The Commission estimates that of these 2,239 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.

47. Open Video Services. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard covering cable services, which is Wired Telecommunications Carriers. The SBA has developed a small business size standard for this category, which is all such firms having 1,500 or fewer employees. According to U.S. Census data for 2007, there were 3,188 firms that in 2007 were Wired Telecommunications Carriers. Of these, 3,144 operated with less than 1,000 employees, and 44 operated with 1,000 or more employees. However, as to the latter 44 there is no data available that shows how many operated with more than 1,500 employees.

48. Television Broadcasting. The SBA defines a television broadcasting station as a small business if such station has no more than $35.5 million in annual receipts. The Commission has estimated the number of licensed full power commercial television stations to be 1,388. According to U.S. Census data for 2007, there were 2,076 television broadcasting establishments in 2007. Of these, 1,515 establishments had receipts under $10 million, and 561 had receipts of $10 million or more. The Commission notes, however, that, in assessing whether a business concern qualifies as small under the above definition, business control affiliations must be included. Because many of these stations may be held by large group owners, and the revenue figures on which the Commission's estimate is based does not include or aggregate revenues from control affiliates, the Commission's estimate likely overstates the number of small entities that might be affected by the Commission's action.

49. The Commission has estimated the number of licensed noncommercial educational (NCE) full power television stations to be 396. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 428 Class A television stations and 1,986 low power television stations (LPTV). Given the nature of these services, the Commission will presume that all Class A television and LPTV licensees qualify as small entities under the SBA definition.

50. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and is therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities, and the Commission's estimates of small businesses to which they apply may be over-inclusive to this extent.

51. Incumbent Local Exchange Carriers (ILECs). Neither the Commission nor the SBA has developed a small business size standard specifically for ILECs. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small ILECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small ILECs in this RFA analysis, although the Commission emphasizes that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

52. According to Census Bureau data for 2007, that there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of less than 1000 employees, and 44 firms had had employment of 1,000 or more. According to Commission data, 1,307 carriers have reported that they are engaged in the provision of ILEC services. Of these 1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 301 have more than 1,500 employees.

53. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Census Bureau data for 2007, there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of less than 1000 employees, and 44 firms had had employment of 1,000 employees or more. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either CLEC services or CAP services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees and 186 have more than 1,500 employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. Seventy-two carriers have reported that they are Other Local Service Providers, and of the 72, 70 have 1,500 or fewer employees and 2 have more than 1,500 employees.

54. Electric Power Distribution Companies. These entities can provide video services over power lines (BPL). The SBA has developed a small business size standard for this category, which is all such firms having 1,000 or fewer employees. Census Bureau data for 2007 show that there were 1,174 firms that operated for the entire year in this category. Of these firms, 50 had 1,000 employees or more, and 1,124 had fewer than 1,000 employees.

55. Cable and Other Subscription Programming. These entities may be directly or indirectly affected by the Commission's action. The size standard established by the SBA for this business category is that annual receipts of $35.5 million or less determine that a business is small. According to 2007 Census Bureau data, there were 396 firms that were engaged in production of Cable and Other Subscription Programming. Of these, 349 had annual receipts below $25 million, 12 had annual receipts ranging from $25 million to $49,999,999, and 35 had annual receipts of $50 million or more.

56. Motion Picture and Video Production. These entities may be directly or indirectly affected by the Commission's action. The size standard established by the SBA for this business category is that annual receipts of $30 million or less determine that a business is small. According to 2007 Census Bureau data, there were 9,095 firms that were engaged in Motion Picture and Video Production. Of these, 8,995 had annual receipts of less than $25 million, 43 had annual receipts ranging from $25 million to $49,999,999, and 57 had annual receipts of $50 million or more.

57. Internet Publishing and Broadcasting and Web Search Portals. These entities may be directly or indirectly affected by the Commission's action. The SBA has deemed an Internet publisher or Internet broadcaster or the provider of a web search portal on the Internet to be small if it has fewer than 500 employees. Census Bureau data for 2007 show that there were 2,705 such firms that operated that year. Of those 2,705 firms, 2,682 (approximately 99%) had fewer than 500 employees, and 23 had 500 or more employees.

58. Closed Captioning Services. These entities may be directly or indirectly affected by the Commission's action. The SBA has developed two small business size standards that may be used for closed captioning services, which track the economic census categories, “Teleproduction and Other Postproduction Services” and “Court Reporting and Stenotype Services.”

59. The relevant size standard for small businesses in Teleproduction and Other Postproduction Services is annual revenue of less than $29.5 million. Census Bureau data for 2007 indicate that there were 1,605 firms that operated in this category for the entire year. Of that number, 1,587 had annual receipts totaling less than $25 million, 9 had annual receipts ranging from $25 million to $49,999,999, and 9 had annual receipts of $50 million or more.

60. The size standard for small businesses in Court Reporting and Stenotype Services is annual revenue of less than $14 million. Census Bureau data for 2007 show that there were 2,706 firms that operated for the entire year. Of this total, 2,687 had annual receipts of under $10 million, 11 firms had annual receipts of $10 million to $24,999,999, and 8 had annual receipts of $25 million or more.

61. If the Commission were to adopt rules extending responsibilities for compliance with the Commission's closed captioning quality standards and other captioning requirements to video programmers or entities other than VPDs, such regulations would impose new compliance obligations and may impose additional reporting and recordkeeping obligations on video programmers, video programming owners, and other entities, including small entities.

62. If the Commission were to adopt rules requiring the use of certain measures to ensure program completeness and synchronicity of closed captions for live and near-live programming and changing the Commission's current definition of near-live programming for purposes of the quality standards adopted in the Order, such regulations would impose additional compliance obligations on VPDs, including small entities.

63. If the Commission were to adopt rules requiring the use of offline captioning or other measures to achieve improved accuracy, synchronicity, placement and program completeness of the captions prior to the re-airing of live and near-live programs, such regulations would impose additional compliance obligations on VPDs, including small entities.

64. If the Commission were to apply the ENT requirements adopted in the Report and Order for broadcasters to non-broadcast networks that use ENT and serve less than 50 percent of all MVPD homes, such regulations would impose new compliance obligations that may pose a financial burden on some non-broadcast networks, including smaller entities.

65. If the Commission were to establish maximum intervals for technical equipment checks, or to allow alternatives to such technical equipment checks, such regulations would impose additional compliance obligations on VPDs, including small entities.

66. If the Commission were to adopt the practices proposed by the NCTA for improving the prompt resolution of consumers' captioning concerns, including requiring VPDs to make reasonable efforts to identify consumer complaints received about captioning issues and periodically review those complaints to identify and resolve recurring captioning problems, VPDs, including small entities, would be subject to the recordkeeping requirements associated with the proposal.

67. If the Commission were to adopt rules requiring VPDs experiencing a captioning outage to notify consumers of the outage and file outage reports with the Commission, VPDs, including small entities, would be subject to the reporting and recordkeeping requirements associated with such outage reports.

68. If the Commission were to adopt a rule requiring that all contact information already required to be submitted by VPDs to the Commission for the VPD registry, see 47 CFR 79.1(i)(3), be submitted using the Commission's web form system, VPDs, including small entities, would not be subject to additional reporting and recordkeeping requirements, because they are already required to submit their contact information to the Commission. However, VPDs, including small entities, may be required to alter their reporting and recordkeeping associated with such submissions in order to comply with the rule.

69. If the Commission were to adopt a rule requiring a VPD, upon receipt of a complaint where the VPD is not the responsible party, to (1) notify the consumer within seven days; (2) offer the consumer a choice of either asking the VPD in writing to forward the complaint to the appropriate party or submitting the complaint directly to the appropriate party on his or her own; and (3) inform the Commission that it has so notified the complainant by providing the Commission with copies of all written or electronic correspondence or a written description of all communications that were not in electronic or written form, VPDs, including small entities, would be subject to the reporting and recordkeeping requirements associated with such complaint forwarding and notifications.

70. If the Commission were to eliminate the four-year exemption contained in § 79.1(d)(9) of its rules pertaining to new networks, 47 CFR 79.1(d)(9), or retain but alter the four-year exemption pertaining to new networks, it would impose new compliance obligations that may pose a financial burden on some smaller entities.

71. If the Commission were to eliminate the exclusion from the definition of video programming for advertisements of five minutes duration or less, 47 CFR 79.1(a)(1), and if the Commission were to eliminate certain self-executing exemptions contained in § 79.1(d) of its rules, including exemptions for late night programming, 47 CFR 79.1(d)(5), locally produced and distributed non-news programming with no repeat value, 47 CFR 79.1(d)(8), interstitials, promotional announcements, and public service announcements that are 10 minutes or less in duration, 47 CFR 79.1(d)(6), and channels producing revenues under $3 million, 47 CFR 79.1(d)(12), it would impose new compliance obligations that may pose a financial burden on VPDs, including small entities.

72. If the Commission were to take action to ensure the effective implementation of the technical standards for the display of closed captioning, it may impose additional compliance obligations on television manufacturers and VPDs, including small entities.

73. If the Commission were to adopt rules governing on-screen visual changes or textual depictions that obstruct closed captioning, it may impose additional compliance obligations on VPDs and video programmers, including small entities.

74. If the Commission were to adopt additional rules governing closed captioning of 3D television and Ultra HDTV, it may impose additional compliance obligations on television manufacturers and VPDs, including small entities.

75. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

76. First, the rules already allow small entities to take advantage of various possible exemptions: (1) The exemption for annual revenues under $3 million, 47 CFR 79.1(d)(12) (However, document FCC 14-12 seeks comment on whether to eliminate this exemption), (2) the exemption limiting the captioning requirement to 2% of annual gross revenues, 47 CFR 79.1(d)(11), and (3) the individual exemption process that allows the Commission to grant exemptions from the captioning rules when the provision of captions would impose an economic burden on a programming entity. 47 CFR 79.1(f).

77. If the Commission were to adopt rules extending responsibilities for compliance with the Commission's closed captioning requirements (including each of the proposals noted above) to video programmers and entities other than VPDs, such regulations would impose new compliance obligations and may impose additional reporting and recordkeeping obligations on video programmers, video programming owners, and other entities, including small entities. However, extending responsibilities for compliance with the Commission's closed captioning requirements to video programmers and other entities may benefit certain small entities through more efficient regulations that reach those entities with the greatest control over closed captioning quality. In addition, in determining whether to extend responsibility for compliance with the Commission's closed captioning requirements to video programmers or other entities involved in the production and delivery of video programming, the Commission will consider the costs of and benefits of such extension of responsibilities.

78. If the Commission were to adopt rules requiring the use of certain measures to ensure program completeness and synchronicity of closed captions for live and near-live programming and changing the Commission's current definition of near-live programming for purposes of the quality standards adopted in the Order, such regulations would impose additional compliance obligations on VPDs, video programmers, or other entities, including small entities. However, such regulations are less burdensome than the alternative of regulations imposing specific metrics for captioning synchronicity and program completeness. In addition, in determining whether to require certain techniques for improving the quality of real-time captioning of live programming, the Commission will consider the incremental costs and burdens of using any of the proposed techniques compared with the benefits of greater accessibility to television programming.

79. If the Commission were to adopt rules requiring the use of offline captioning or other measures to achieve improved accuracy, synchronicity, placement and program completeness of the captions prior to the re-airing of live and near-live programming first shown after the effective date of any such rule, such regulations would impose additional compliance obligations on VPDs, video programmers, or other entities including small entities. In determining whether to require certain techniques for improving the quality of captioning of live or near-live programming that is later re-aired, the Commission will consider the costs and burdens of using any of the proposed techniques compared with the benefits of greater accessibility to television programming.

80. If the Commission were to apply the ENT requirements adopted in the Order to non-broadcast networks that use ENT and serve less than 50 percent of all MVPD homes to ensure greater accessibility to news programming, such regulations would impose new compliance obligations that may pose a financial burden on some non-broadcast networks, including small entities. However, the Commission's proposal to apply the ENT requirements to non-broadcast channels serving less than 50 percent of all MVPD homes provides a less burdensome alternative to a phase-out of ENT, which would impose higher burdens and costs on small entities under the current rules. In addition, networks with small budgets would still be able to take advantage of various possible exemptions: (1) The exemption for annual revenues under $3 million, 47 CFR 79.1(d)(12) (document FCC 14-12 also seeks comment on whether to eliminate the exemption for annual revenues under $3 million), (2) the exemption limiting the captioning requirement to 2% of annual gross revenues, 47 CFR 79.1(d)(11), and (3) the individual exemption process that allows the Commission to grant exemptions from the captioning rules when the provision of captions would impose an economic burden on a programming entity. 47 CFR 79.1(f).

81. If the Commission were establish maximum intervals for technical equipment checks, or other measures that can be used to ensure that captions are passed on to consumers, such regulations would impose additional compliance obligations on VPDs, including small entities. In determining whether to require intervals for such checks or other measures, the Commission will consider the costs and burdens of these requirements compared with the value of this maintenance to greater accessibility to television programming.

82. If the Commission were to adopt the practices proposed by NCTA for improving the prompt resolution of consumers' captioning concerns, VPDs, including small entities, would be subject to the recordkeeping requirements associated with the proposal. However, the proposal would impose no reporting requirements and does not require specific measures for identifying and reviewing consumer complaints related to closed captioning problems. In addition, such a requirement may benefit small entities because it may reduce consumer complaints regarding captioning, because the VPDs may be addressing problems earlier as a result of these procedures.

83. If the Commission were to adopt rules requiring VPDs experiencing a captioning outage to notify consumers in real time of the outage and file outage reports with the Commission, VPDs, including small entities, would be subject to the reporting and recordkeeping requirements associated with such outage reports. Adopting such a requirement would be in the public interest because it would provide greater consumer access to information about captioning outages. In addition, such a requirement may benefit small entities because it may reduce consumer complaints regarding captioning outages, because the outage notifications would inform consumers that the VPD is aware of and addressing the problem.

84. If the Commission were to adopt a rule requiring that all contact information already required to be submitted by VPDs to the Commission for the VPD registry, see 47 CFR 79.1(i)(3), be submitted using the Commission's web form system only, VPDs, including small entities, would not be subject to additional reporting and recordkeeping requirements, since they are already required to submit their contact information to the Commission. However, VPDs, including small entities, may be required to alter their reporting and recordkeeping associated with such submissions in order to comply with the rule. In determining whether to require VPDs to submit their contact information via the web form, the Commission will consider the costs of transitioning to a mandatory web form method of filing, compared with the ease and accuracy of filing and the benefits derived from a mandatory system.

85. If the Commission were to adopt a rule requiring a VPD, upon receipt of a complaint where the VPD is not the responsible party, to (1) notify the consumer within seven days; (2) offer the consumer a choice of either asking the VPD in writing to forward the complaint to the appropriate party or submitting the complaint directly to the appropriate party on his or her own; and (3) inform the Commission that it has so notified the complainant by providing the Commission with copies of all written or electronic correspondence or a written description of all communications that were not in electronic or written form, VPDs, including small entities, would be subject to the reporting and recordkeeping requirements associated with such complaint forwarding and notifications. This rule is intended to allow for the forwarding of consumer complaints as required by § 79.1(g)(3) of the Commission's rules without violating the consumer protections contained in sections 631(c)(1) and 338(i)(4) of the Act. Nevertheless, in determining whether to adopt this rule, the Commission will consider the costs of forwarding complaints upon consumer request and notifying the Commission of actions taken compared to the benefits of providing a consumer-friendly way to get the complaints to the correct parties.

86. If the Commission were to eliminate the four-year exemption contained in § 79.1(d)(9) of the Commission's rules pertaining to new networks, or retain but alter the four-year exemption pertaining to new networks, it would impose new compliance obligations that may pose a financial burden on some small entities. However, under the current rules, networks with small budgets would still be able to take advantage of various possible exemptions: (1) The exemption for annual revenues under $3 million, 47 CFR 79.1(d)(12) (document FCC 14-12 also seeks comment on whether to eliminate the exemption for annual revenues under $3 million), (2) the exemption limiting the captioning requirement to 2% of annual gross revenues, 47 CFR 79.1(d)(11), and (3) the individual exemption process that allows the Commission to grant exemptions from the captioning rules when the provision of captions would impose an economic burden on a programming entity. 47 CFR 79.1(f).

87. If the Commission were to eliminate the exclusion from the definition of video programming for advertisements of five minutes duration or less, 47 CFR 79.1(a)(1), and if the Commission were to eliminate certain self-executing exemptions contained in § 79.1(d) of its rules, including exemptions for late night programming, 47 CFR 79.1(d)(5), locally produced and distributed non-news programming with no repeat value, 47 CFR 79.1(d)(8), interstitials, promotional announcements, and public service announcements that are 10 minutes or less in duration, 47 CFR 79.1(d)(6), and channels producing revenues under $3 million, 47 CFR 79.1(d)(12), it would impose new compliance obligations that may pose a financial burden on VPDs, including small entities. However, under the current rules, entities with small budgets would still be able to take advantage of other possible exemptions: (1) The exemption limiting the captioning requirement to 2% of annual gross revenues, 47 CFR 79.1(d)(11), and (2) the individual exemption process that allows the Commission to grant exemptions from the captioning rules when the provision of captions would impose an economic burden on a programming entity. 47 CFR 79.1(f).

88. If the Commission were to take action to ensure the effective implementation of the technical standards for the display of closed captioning, it may impose additional compliance obligations on television manufacturers and VPDs, including small entities. In determining whether to require any other practices governing technical standards for the display of closed captioning, the Commission will consider the costs and burdens of such practices compared with the benefits of greater accessibility to television programming.

89. If the Commission were to adopt rules governing on-screen visual changes or textual depictions that obstruct closed captioning, it may impose additional compliance obligations on VPDs and video programmers, including small entities. In determining whether to require any other practices governing on-screen visual changes or textual depictions that obstruct closed captioning, the Commission will consider the costs and burdens of such practices compared with the benefits of greater accessibility to television programming.

90. If the Commission were to adopt rules governing display of closed captioning, closed captioning of 3D television or Ultra HDTV programming, it may impose additional compliance obligations on television manufacturers and VPDs, including small entities. However, VPDs are already subject to rules governing the display of closed captioning and are required to reliably encode, transport, and render closed captions on 3D and Ultra HDTV video programming in accordance with Commission rules. Also, in accordance with the Commission's captioning rules, such VPDs and providers must permit the pass through or rendering of closed captions in a manner that will allow viewers to exercise control over various display features and to activate and deactivate captions when video programming is played back on television receivers with 3D or Ultra HDTV capability. Finally, interconnection mechanisms and standards for 3D and Ultra HDTV video source devices must be capable of conveying from the source device to the consumer equipment the information necessary to permit or render the display of closed captions. In determining whether to require any other practices for the display of closed captioning or captioning 3D television or Ultra HDTV, the Commission will consider the costs and burdens of such practices compared with the benefits of greater accessibility to television programming.

Pursuant to sections 4(i), 303(r) and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 613, document FCC 14-12 is adopted.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 14-12 including the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

We, the U.S. Fish and Wildlife Service, announce a 12-month finding on a petition to reclassify the arroyo toad (Anaxyrus californicus) as threatened under the Endangered Species Act of 1973, as amended (Act). After review of all available scientific and commercial information, we find that reclassifying the arroyo toad as threatened is warranted, and, therefore, we propose to reclassify the arroyo toad as threatened under the Act. We are seeking information and comments from the public regarding this proposed rule.

DATES:

We will accept comments received or postmarked on or before May 27, 2014. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by May 12, 2014.

ADDRESSES:

Comment submission: You may submit comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2014-0007, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Requested section below for more information).

Document availability: A copy of the Species Report referenced throughout this document can be viewed at http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=D020, at http://www.regulations.gov under Docket No. FWS-R8-ES-2014-0007, or at the Ventura Fish and Wildlife Office's Web site at http://www.fws.gov/ventura/.

Purpose of Regulatory Action. In December 2011, we received a petition to reclassify the arroyo toad from endangered to threatened, based on analysis and recommendations contained in our August 2009 5-year status review of the species. On June 4, 2012, we published a 90-day finding that the petition presented substantial information indicating that reclassifying the arroyo toad may be warranted (77 FR 32922) and initiated a status review. After review of all available scientific and commercial information, we find that the petitioned action is warranted and propose to reclassify the arroyo toad from an endangered species to a threatened species on the Federal List of Endangered and Threatened Wildlife. This document constitutes our 12-month finding in response to the petition to reclassify the arroyo toad from endangered to threatened.

The basis for our action. Under the Act, we can determine that a species is an endangered species or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We must consider whether or not the species is an endangered species or threatened species because of the same factors when we consider reclassifying or delisting a species.

We have determined that there are still significant threats impacting the arroyo toad currently and into the future, particularly operation of dams and water diversions (Factors A and E); urban development (Factors A and E); introduced predator species (Factors A and C); and drought (Factors A and E). However, despite the existence of these ongoing threats, we conclude that the overall magnitude of threats impacting the arroyo toad has decreased since the time of listing, due in part to implementation of conservation and management actions. Furthermore, we find that the intent of the recovery criteria for downlisting of the arroyo toad has been met, and that the arroyo toad now fits the definition of a threatened rather than an endangered species.

Information Requested

We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available, and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, tribes, the scientific community, industry, or other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) Reasons why we should or should not reclassify the arroyo toad under the Act (16 U.S.C. 1531 et seq.).

(2) New biological or other relevant data concerning any threat (or lack thereof) to this species.

(3) New information concerning the distribution and population size or trends of this species.

(4) New information on the current or planned activities within the range of the arroyo toad that may adversely affect or benefit the species.

(5) New information and data on the projected and reasonably likely impacts to the arroyo toad or its habitat associated with climate change.

(6) New information on threats or impacts to the arroyo toad in the Mexico portion of its range.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Public Hearings

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. We must receive your request within 45 days after the date of this Federal Register publication. Send your request to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

Peer Review

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (50 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. A thorough review of information that we relied on in preparing this proposed rule—including information on taxonomy, life history, ecology, population distribution and abundance, and potential threats—is presented in the arroyo toad Species Report (Service 2013) available at http://www.regulations.gov (Docket Number FWS-R8-ES-2014-0007). The purpose of peer review is to ensure that decisions are based on scientifically sound data, assumptions, and analyses. The peer reviewers will conduct assessments of the proposed rule, and the specific assumptions and conclusions regarding the proposed downlisting. These assessments will be completed during the public comment period.

We will consider all comments and information we receive during the comment period on this proposed rule as we prepare the final determination. Accordingly, the final decision may differ from this proposal.

Previous Federal Action

We proposed to list the arroyo toad as an endangered species under the Act on August 3, 1993 (58 FR 41231), based primarily on threats from urban development, agricultural conversion, construction of new dams, roads and road maintenance, recreational activities, introduced predator species, and drought. We published a final rule listing the arroyo toad as an endangered species on December 16, 1994 (59 FR 64859). We published a recovery plan for the arroyo toad in 1999 (Service 1999). Critical habitat was designated in 2001 (66 FR 9414, February 7, 2001) and revised in 2005 (70 FR 19562, April 13, 2005) and 2011 (76 FR 7246, February 9, 2011).

Under the Act, we maintain the Lists of Endangered and Threatened Wildlife and Plants at 50 CFR 17.11 (for animals) and 17.12 (for plants) (Lists). We amend the Lists by publishing final rules in the Federal Register. Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. Section 4(c)(2)(B) requires that we determine: (1) Whether a species no longer meets the definition of endangered or threatened and should be removed from the Lists (delisted), (2) whether a species listed as endangered more properly meets the definition of threatened and should be reclassified to threatened (downlisted), or (3) whether a species listed as threatened more properly meets the definition of endangered and should be reclassified to endangered (uplisted). In accordance with 50 CFR 424.11(d), using the best scientific and commercial data available, we will consider a species for delisting only if the data substantiate that the species is neither endangered nor threatened for one or more of the following reasons: (1) The species is considered extinct; (2) the species is considered recovered; or (3) the original data available when the species was listed, or the interpretation of such data, were in error.

We published a notice announcing active review and requested public comments concerning the status of the arroyo toad under section 4(c)(2) of the Act on March 5, 2008 (73 FR 11945). We notified the public of completion of the 5-year review on May 21, 2010 (75 FR 28636). The 5-year review, completed on August 17, 2009 (Service 2009), resulted in a recommendation to change the status of the species from endangered to threatened. A copy of the 2009 5-year review for the arroyo toad is available on the Service's Environmental Conservation Online System (http://ecos.fws.gov/docs/five_year_review/doc2592.pdf).

On December 21, 2011, we received a petition dated December 19, 2011, from the Pacific Legal Foundation, requesting the Service to delist the Inyo California towhee (Pipilo crissalis eremophilus), and to reclassify from endangered to threatened the arroyo toad (Anaxyrus californicus), Modoc sucker (Catostomus microps), Eriodictyon altissimum (Indian Knob mountainbalm), Astragalus jaegerianus (Lane Mountain milk-vetch), and Hesperocyparis abramsiana (Santa Cruz cypress). The petition was based on the analysis and recommendations contained in the most recent 5-year reviews for these taxa. On June 4, 2012 (77 FR 32922), we published in the Federal Register a 90-day finding for the 2011 petition to reclassify these six taxa. In our 90-day finding, we determined the 2011 petition provided substantial information indicating the petitioned actions may be warranted, and we initiated status reviews for each species.

In April 2013, we received a complaint on our failure to complete 12-month findings on the above-mentioned species, including the arroyo toad (Case No. 2:13-cv-00800-GEB-AC; April 24, 2013). In August 2013, we settled that case by committing to a schedule for completing all of the 12-month findings; the settlement date for completion of the arroyo toad finding is March 21, 2014. This proposed downlisting rule constitutes the 12-month finding on the 2011 petition to reclassify the arroyo toad and our latest 5-year status review for the species. We are addressing the 12-month findings for the other petitioned species separately.

Background

A scientific analysis of the status of the species is presented in detail within the arroyo toad Species Report (Service 2013, entire), which is available at http://www.regulations.gov at Docket Number FWS-R8-ES-2014-0007. The Species Report was prepared by Service biologists to provide thorough discussion of the species ecology, biological needs, and analysis of the threats that may be impacting the species. The Species Report includes discussion of the following: life history; taxonomy; habitat requirements; species range, distribution, and abundance; threats analysis; and progress towards recovery. This detailed information is summarized in the following paragraphs of this BACKGROUND section and the Summary of Factors Affecting the Species section.

The arroyo toad is a small, stocky, warty toad that is about 2 to 3 inches (in) (5.1 to 7.6 centimeters (cm)) in length (Stebbins 2003, p. 212). The skin of this toad is light olive green, gray, or light brown in color with a light-colored stripe shaped like a “V” across the head and eyelids. The belly is white or buff colored, usually without spots. Arroyo toads are found in low-gradient, medium-to-large streams and rivers with intermittent and perennial flow in coastal and desert drainages in central and southern California and Baja California, Mexico. Arroyo toads occupy aquatic, riparian, and upland habitats in the remaining suitable drainages within its range. Arroyo toads are breeding habitat specialists and need slow-moving streams that are composed of sandy soils with sandy streamside terraces (Sweet 1992, pp. 23-28). Reproduction is dependent upon the availability of very shallow, still, or low-flow pools in which breeding, egg-laying, and tadpole development occur. Suitable habitat for the arroyo toad is created and maintained by periodic flooding and scouring that modify stream channels, redistribute channel sediments, and alter pool location and form. These habitat requirements are largely dependent upon natural hydrological cycles and scouring events (Madden-Smith et al. 2003, p. 3).

At the time the species was listed, it was classified as a subspecies (Bufo microscaphus californicus) of the southwestern toad (B. microscaphus). However, the taxonomy of the arroyo toad was reexamined (Gergus 1998, entire), and as a result, in 2001, we formally changed the name on the List of Endangered and Threatened Wildlife to B. californicus (66 FR 9414, February 7, 2001). Based on a phylogenetic analysis of comparative anatomical and molecular genetic data for amphibians (Frost et al. 2006, p. 363) that was accepted by the scientific community, we again formally changed the name on the List to Anaxyrus californicus in 2011 (76 FR 7246, February 9, 2011).

The arroyo toad was once relatively abundant in the coastal portions of central and southern California. At the time of listing, arroyo toads were known to occur in 22 river basins from the upper Salinas River system in Monterey and San Luis Obispo Counties; south through the Santa Maria and Santa Ynez River basins in Santa Barbara County; the Santa Clara River basin in Ventura County; the Los Angeles River basin in Los Angeles County; river basins of Orange, Riverside, and San Diego Counties; and south to the Arroyo San Simeon system in Baja California, Mexico (Sweet 1992, p. 18; Service 1999, p. 12; Service 2013, Map 1). Prior to the time of listing, Jennings and Hayes (1994, p. 57) documented a decline of 76 percent of arroyo toad populations throughout the species' range due to loss of habitat and hydrological alterations to stream systems as a result of dam construction and flood control. This figure was based on studies done in the early 1990s by Sam Sweet (Jennings and Hayes 1994, p. 57) that addressed the natural history and status of arroyo toad populations on a portion of the species' range on the Los Padres National Forest.

Though arroyo toads have been extirpated from some rivers and streams within river basins that they occupied at the time of listing, the number of areas known to be occupied by arroyo toads has increased since the time of listing, mostly due to increased survey efforts. Although Jennings and Hayes (1994, p. 57) estimated that arroyo toads had been eliminated from 76 percent of their historical range prior to the time of listing, subsequent discoveries of new localities and remnant populations reduce this estimate to 65 percent (Lanoo 2005, p. 4). We now consider there to be a total of 35 river basins that support arroyo toads with 25 in the United States and 10 in Mexico; arroyo toads are still extant in all 22 river basins occupied at the time of listing. Currently, arroyo toads are limited to isolated populations primarily in the headwaters of coastal streams along the central and southern coast of California and southward to Rio Santa Maria near San Quintin in northwestern Baja California, Mexico (Lovich 2009, p. 62).

The 1999 recovery plan divided the range of the arroyo toad into three recovery units: the Northern Recovery Unit, the Southern Recovery Unit, and the Desert Recovery Unit. The recovery plan did not address river basins in Baja California, Mexico. In the Species Report, we analyzed threats by river basin, grouping those basins by recovery unit. We also considered all known occurrences in Baja California, Mexico. Based on new distribution information and correction of some locality records now known to be in error (Ervin et al. 2013, pp. 197-204), we updated the river basins in each recovery unit for the purposes of our analysis (Service 2013, p. 15, Map 1, Table 1).

The Northern Recovery Unit consists of the following five river basins: Salinas, Santa Maria, Santa Ynez, Santa Clara, and Los Angeles (Service 1999, Table 1; Service 2013, Table 1). The Southern Recovery Unit consists of the following river 18 basins: Lower Santa Ana, Upper Santa Ana, San Jacinto, San Juan Creek, San Mateo Creek, San Onofre Creek, Lower Santa Margarita, Upper Santa Margarita, Murrieta Creek, Lower and Middle San Luis Rey, Upper San Luis Rey, Lower Santa Ysabel Creek, Upper Santa Ysabel Creek, Upper San Diego, Lower Sweetwater, Upper Sweetwater, Lower Cottonwood Creek, and Upper Cottonwood Creek (Service 1999, Table 1; Service 2013, Table 1). The Desert Recovery Unit consists of the following two river basins: Antelope-Fremont and Mojave (Service 1999, Table 1; Service 2013, Table 1). Baja California includes the following 10 river basins: Rio Las Palmas, Rio Guadalupe, Arroyo San Carlos, Rio El Zorillo, Rio Santo Tomas, Rio San Vincente, Rio San Rafael, Rio San Telmo, Rio Santo Domingo, and Rio Santa Maria. Of those 25 river basins in the United States and an additional 10 river basins in Baja California, Mexico, 28 contain arroyo toad occurrences that are extant or presumed to be extant, and many of these contain multiple populations of arroyo toads in different creeks and rivers (Service 2013, Table 1). Identification of the river basins containing occurrences that are known to be or presumed to be extant is based solely on the existence of reliable surveys or sightings of arroyo toads in recent years (Service 2013, p. 18, Table 1). The statuses of the remaining seven occurrences are unknown, because no surveys have been conducted in the past 6 years.

Summary of Factors Affecting the Species

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species because of any one or a combination of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or human-made factors affecting its continued existence. A species may be reclassified on the same basis.

Determining whether the status of a species has improved to the point that it can be downlisted requires consideration of whether the species is endangered or threatened because of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections.

A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” in the significant portion of its range phrase refers to the range in which the species currently exists, and the word “significant” refers to the value of that portion of the range being considered to the conservation of the species. The “foreseeable future” is the period of time over which events or effects reasonably can or should be anticipated, or trends extrapolated. For the purposes of this analysis, we first evaluate the status of the species throughout all its range, then consider whether the species is in danger of extinction or likely to become so in any significant portion of its range.

At the time of listing, the primary threats to the arroyo toad were urban development, agricultural conversion, construction of new dams, roads and road maintenance, recreational activities, introduced predator species, and drought (59 FR 64859; December 16, 1994). Other threats identified in 1994 included livestock grazing, mining and prospecting, and alteration of the natural fire regime (59 FR 64859).

Most of the threats identified at the time of listing are still impacting the arroyo toad and its habitat; however, in many cases, the way in which they impact the species has changed. Some new threats have also been identified. Current or potential future threats to the arroyo toad include urban development (Factors A and E), agriculture (Factors A and E), operation of dams and water diversions (Factors A and E), mining and prospecting (Factors A and E), livestock grazing (Factors A and E), roads and road maintenance (Factors A and E), recreation (Factors A and E), invasive, nonnative plants (Factors A and E), introduced predator species (Factors A and C), drought (Factors A and E), fire and fire suppression (Factors A and E), and effects of climate change (Factors A and E) (Service 2013, pp. 32-87). Threats identified at the time of listing that have been found either to be of no concern, insignificant concern, or negligible at this time include construction of new dams (Factor A), collection for recreational or scientific purposes (Factor B), and disease (Factor C); the best available scientific and commercial information indicates that these are not threats at this time (Service 2013, p. 28). Inadequacy of existing regulatory mechanisms (Factor D) was not considered to be a threat at the time of listing, and is not considered to be a threat now (Service 2013, pp. 28-29).

In the Species Report, we examined the scope and severity of threats. The severity of threats measures the degree of impact to arroyo toad populations or habitat. The scope of the threat considers the proportion of arroyo toad occurrences that are reasonably expected to be affected by a threat. The interaction between scope and severity provided the overall impact of the threat, which we classified as very high, high, medium, or low. A very high threat impact was one with extreme severity and pervasive scope; a high threat impact had large scope and extreme or serious severity; a medium threat impact had a more restricted scope and high severity, or more widespread scope and moderate severity; and a low threat impact had either small or restricted scope and a slight or moderate severity (Service 2013, pp. 29-31).

The following sections provide a summary of the current threats impacting the arroyo toad.

Urban Development

At the time of listing, urban development caused both permanent loss of riparian wetlands and ongoing degradation of riparian habitat that supported arroyo toads. At that time, habitat loss and degradation were extensive in rivers of southern California as a result of agricultural and urban development (Griffin et al. 1999, p. 5). Since then, conservation measures have reduced the amount and scale of direct habitat loss due to urban development, and many river basins have land protected from development by State, Federal and local agencies, including four river basins in Mexico that occur in part within the boundaries of national parks. However, not all land is protected, and urban development impacts are expected to continue. Today, 23 of the 35 river basins occupied by arroyo toads are affected by both direct and indirect effects of urban development, including 18 river basins in the United States (Service 2013, pp. 34-35).

Permanent loss and alteration of arroyo toad habitat is caused by activities that include: construction and maintenance of infrastructure; alteration of stream dynamics; declines in water quality; stabilization of stream banks; and maintenance of flood, drainage, and water quality protection features. In addition to the loss and alteration of habitat, construction activities can directly kill, injure, or limit foraging and breeding by arroyo toads by excluding arroyo toads from portions of their habitat that are present within a development project area (Campbell et al. 1996, p. 15; Service 1999, p. 40; Service 2013, pp. 34, 80-81).

Though losses of small amounts of habitat due to urban development still occur, urban development more commonly impacts arroyo toads and their habitat through alteration of stream dynamics and water quality. Stream dynamics can be altered by both groundwater extraction and increased surface flows. Groundwater extraction related to urban development reduces the amount of surface flow available for creeks and rivers. This reduction in water can be detrimental to arroyo toads because they require breeding pools that persist for at least 2 months in the summer for larval development and tadpole metamorphosis (Campbell et al. 1996, p. 6). Extraction can also lower groundwater levels below the depth that streamside or wetland vegetation needs to survive, resulting in a loss of riparian vegetation and habitat (USGS 2012). Production from groundwater supplies in San Diego County is anticipated to increase 75 percent by 2015 (CEC 2009, p. 19). Currently, the City of San Diego is considering groundwater extraction in San Pasqual Valley (lower Santa Ysabel Creek) (Brown, USGS, pers. comm. 2012).

Arroyo toads and their habitat can also be impacted by increased surface flows due to urban runoff. Generally, increases in surface runoff, particularly during large storm events, can affect arroyo toads by disrupting breeding and by sedimentation which buries eggs or displaces adults and juveniles (Service 2013b, p. 17). Increased flows in streams due to urban runoff can also lead to changes in the invertebrate communities that may lead to decreased survival of arroyo toad tadpoles due to competition or predation, and may reduce the food supply for post-metamorphic toads (Service 1999, p. 41). Alterations to surface flows resulting from groundwater extraction or increased surface runoff can impact all stages of arroyo toad life history and alter breeding habitat.

Urban runoff from storm events or from regularly occurring irrigation of urban areas may also decrease the water quality in streams and rivers that support arroyo toads. Runoff from roads, residential housing, and golf courses often contains chemicals that are toxic to wildlife (for example, car fluids, pesticides, and herbicides) (Service 1999, p. 41). Arroyo toads are exposed to hazardous materials by absorbing them through their skin from the water or contaminated vegetation, or by ingesting them from contaminated vegetation, prey species, or water. However, the life-history characteristics of arroyo toads may decrease the impacts of contaminated runoff. Sweet (1992, pp. 54-57) observed that arroyo toads almost never breed in pools that are isolated from the flowing channel and where contaminants would be found in highest concentrations. Arroyo toads may use side channels and washouts as long as there is some flow through them, but they are abandoned as soon as this flow ceases (Lanoo 2005, p. 2). Therefore, the arroyo toad's sensitivity to aquatic contaminants may be decreased.

Despite these impacts, the amount of urban development resulting in the destruction and removal of arroyo toad habitat has largely decreased since the time of listing, as much of the undeveloped arroyo toad habitat is now conserved in protected areas. Of the 25 river basins that support arroyo toads and their habitat in the United States, 20 contain land owned and managed in part by State or Federal agencies (Service 2013, Table 1). The impacts that do remain from urban development on private or locally owned land have been reduced through conservation measures. These additional measures have been put in place on privately and locally owned land at 10 of 18 river basins in the United States impacted by urban development: 1 river basin in the Northern Recovery Unit, and 9 river basins in the Southern Recovery Unit.

In the Northern Recovery Unit, a proposed East Area 1 project in Santa Paula (EDC 2012) and current and future development plans for Newhall Ranch have the potential to reduce or eliminate much of the suitable arroyo toad habitat in this area; however, to reduce the impacts associated with urban development, Newhall Ranch developed a Natural Resource Management Plan (NRMP) for the Santa Clara River. The plan provides measures designed to protect, restore, monitor, manage, and enhance habitat for multiple species, including the arroyo toad (EDC 2012, entire). Of particular importance to the conservation of the arroyo toad and its habitat are the substantial conservation easements that are included in the NRMP, which, when completed, will protect almost all arroyo toad breeding habitat and riparian habitat within the Newhall Ranch development. At the present time, approximately 1,011 ac (409 ha) of Newhall Ranch lands have been conveyed to the California Department of Fish and Wildlife (CDFW), and additional easements are awaiting approval.

Since the time of listing, multiple habitat conservation plans (HCPs) have been implemented in the Southern Recovery Unit to provide protection to the arroyo toad and decrease habitat loss and alteration due to urbanization. These HCPs are responsible for placing land within seven river basins into reserves; for example, all arroyo toad habitat within the Orange County Central-Coastal Natural Community Conservation Plan (NCCP) (Lower Santa Ana River Basin) is within reserves. Within the Orange County Central-Coastal NCCP reserves, monitoring and management related to the arroyo toad have included reserve-wide herpetofauna surveys conducted from 1997 through 2001 and ongoing control of invasive, nonnative vegetation in the upland environment. Development of adaptive management plans for the arroyo toad within these and other dedicated reserves within HCPs is being planned for the future, but is not yet in place. Additional land within five river basins has been acquired by Federal, State and local government. These conservation measures have resulted in land acquisition in 9 of the 14 river basins in the Southern Recovery Unit impacted by urban development.

Very limited information is available on the effects of urban development in Mexico. We are aware that urban development is occurring at five river basins within Mexico (Lovich 2009, pp. 77, 85); however, the magnitude of impacts at these locations from urban development is unclear.

Urban development continues to impact the arroyo toad throughout its range. Though altered flow regimes and other indirect effects from development continue to impact habitat that supports the arroyo toad, the amount of direct destruction and removal of habitat has decreased. This decrease in the severity of direct habitat loss from urban development since the time of listing is due to the amount of land within river basins in the United States that has been added to reserves though local HCPs and that overall is managed by state or Federal agencies (for more details on land ownership, see Table 1 in Service 2013). The reduction in the threat of urban development is also due to conservation measures that have been put in place on private and locally owned land to reduce, eliminate, or mitigate for the existing and future effects of urban development. Although urban development continues to pose a threat to the continued existence of the arroyo toad, the magnitude of this threat has decreased since the time of listing on local and private lands at 10 of the 25 river basins in the United States described above where conservation plans are being implemented. In these river basins, arroyo toad occurrences are no longer at risk of being extirpated through permanent loss and destruction of riparian habitat. However, indirect effects of development, such as altered flow regimes, continue to cause longer term alterations to arroyo toad populations and the habitat that supports them. These alterations, while not likely to result in immediate extirpation of populations, can reduce the rates of survival and reproduction within populations, and result in a long-term decline in populations.

Even with the conservation actions described above, we still consider urban development is a threat with high impact to the arroyo toad and its habitat. Urban development currently has a large scope (affects portions of 23 out of the 35 occurrences of arroyo toad) and a serious severity, as it poses immediate and ongoing impacts to the species (Service 2013, p. 37). We also conclude that the current effects from urban development, while no longer likely to directly destroy habitat or result in immediate extirpation of occurrences, continue to degrade habitat and affect the health of the populations of arroyo toads. We consider overall that urban development is a threat with a high level of impact to the arroyo toad and its habitat (Service 2013, pp. 32-37).

Agriculture

At the time of listing, habitat loss and degradation from agricultural development was a major threat to the continued existence of the arroyo toad. Today, direct loss of habitat from agricultural development is no longer considered a threat. However, ongoing agricultural practices are known to impact arroyo toads and their habitat. These practices currently convert stream terraces and upland habitats adjacent to occupied arroyo toad habitat to farmland and road corridors, eliminate foraging and burrowing habitat for arroyo toads, and create barriers to dispersal. Streams may also be diverted for agricultural use, resulting in permanent loss of arroyo toad breeding habitat. Currently, 15 of the 35 river basins that support arroyo toads are impacted by agricultural practices.

Agricultural use adjacent to riparian areas can result in direct mortality of adult arroyo toads, as agricultural fields can act as ecological traps for arroyo toads. Toads are often attracted to agricultural fields for cover, food, and moisture, and can be killed by trampling, chemicals, and machinery (Griffin and Case 2001, pp. 641-642). In the Griffin and Case study (2001, p. 641), more than half of the male arroyo toads observed after July 29 were active in burrows or made new burrows in agricultural lands adjacent to breeding habitat. Mechanized tilling, pesticide application, and trampling were frequently observed in these agricultural fields within the study site (Griffin and Case 2001, p. 641).

Another concern related to agricultural development is agricultural runoff. As discussed in the Urban Development section above, runoff contains contaminants such as herbicides, pesticides, and fertilizers that may kill toads, affect development of larvae, or affect their food supplies or habitat (Service 1999, p. 41). For example, granular fertilizers, particularly ammonium nitrate, are highly caustic and have caused mass injuries and mortality to frogs and newts in Europe (Schneeweiss and Schneeweiss 1997 in Service 1999, p. 41). Though arroyo toads primarily inhabit areas with moving water (Lanoo 2005, p. 2), they may also be more susceptible to areas with chemical contamination in both terrestrial and aquatic environments, because their life history involves both aquatic larvae and terrestrial adult stages.

Since the time of listing, actions have been taken to reduce the impact of agriculture on arroyo toads and their habitat at two occurrences in the United States. An agricultural lease was discontinued on Marine Corps Base (MCB) Camp Pendleton adjacent to lower San Mateo Creek, where impacts to arroyo toads were documented in the Griffin and Case (2001) study. Also, within City of San Diego lands encompassing lower Santa Ysabel Creek, some agricultural leases have been moved away from riparian areas (McGinnis, City of San Diego, pers. comm. 2012).

Very limited information is available on the effects of agriculture to arroyo toads and their habitat in Mexico. We are aware that agriculture is affecting five river basins in Mexico, three of which are specifically impacted by groundwater pumping for irrigation (Lovich 2009, p. 85); however, the magnitude of these impacts is unclear.

Because arroyo toads use both aquatic and terrestrial environments, they are doubly impacted by agricultural activities that subject their habitats to increased fragmentation and decreased water quality. Efforts since the time of listing have removed the threat of direct habitat loss due to agricultural development, and reduced the impact of agricultural use near some occurrences. However, despite these efforts, this threat has a large scope, as impacts from agriculture continue throughout most of the species' range at 15 of 35 river basins. Though arroyo toad occurrences are no longer at risk of being extirpated through permanent conversion of riparian habitat to agriculture, arroyo toad populations may experience impacts such as alteration of water quality and barriers to dispersal; as such, we conclude that this threat has a moderate severity. While not likely to result in immediate extirpation of populations, these effects can cause mortality of individuals and reduce the rates of survival and reproduction within populations, and result in a long-term decline in populations. Therefore, we conclude that agriculture has a moderate level of impact to the arroyo toad and its habitat (Service 2013, pp. 37-39).

Operation of Dams and Water Diversions

Prior to listing, short- and long-term changes in river hydrology, including construction of dams and water diversions, were responsible for the loss of approximately 40 percent of the original range of the arroyo toad; furthermore, nearly half of all population extirpations prior to listing are attributed to impacts from original dam construction and operation (Sweet 1992, pp. 4-5; Ramirez 2003, p. 7). Today, the potential for construction of new dams has been greatly reduced, and no dams are presently anticipated to be built in river basins that support arroyo toads. However, water diversions and altered flow regimes due to operation of existing dams continue to affect arroyo toads in 19 of the 35 river basins that support them.

Because river flow forms physical habitats, such as riffles, pools, and bars in rivers and floodplains, the primary impacts to habitat from dams and water diversions are caused by flow alteration. Impacts of flow alteration on arroyo toad habitat include changes in the timing, amount, and duration of channel flows; loss of coarse sediments below the dam; and an increase in vegetation density due to the decrease or elimination of scouring flows (Madden-Smith et al. 2003, p. 3).

Arroyo toads and their breeding habitat can also be negatively impacted by sudden releases of excess water from dams. When these releases occur during the breeding season, they can reconfigure suitable breeding pools, thus disrupting clutch and larval development (Ramirez 2003, p. 7). Excessive water releases also wash away arroyo toad eggs and tadpoles, promote the growth of nonnative species, and reduce the availability of open sand bar habitat. For example, at Barrett Dam on Cottonwood Creek, water releases of several million gallons per day during the period when larval arroyo toads were metamorphosing negatively affected the population in San Diego County by washing away potential recruits from that year's population (Campbell et al. 1996, p. 15).

Flow alteration also causes habitat modification by promoting the growth of nonnative plants (Jennings and Hayes 1994, p. 56; Campbell et al. 1996, pp. 15-16; Madden-Smith et al. 2003, p. 3; Service 1999, pp. 42-44). Persistent releases from dams throughout the normal dry season cause changes in vegetation by discouraging the growth of native riparian species such as willow, sycamore, and cattails (Typha spp.) while encouraging the growth of some introduced species such as Tamarix ramosissima (tamarisk) and Arundo donax (giant reed) (Service 1999, p. 43). Increased vegetation density reduces the amount of open streambed and shallow pool habitat preferred by arroyo toads. For example, in Piru Creek, habitat has been degraded by the lack of scouring flows after the construction of Pyramid Dam, leading to an influx of vegetation that has made habitat unsuitable for arroyo toads (Sweet 2012, pers. comm.).

Dams also alter arroyo toad habitat through the creation of reservoirs. Reservoirs turn running water habitats into lake-like systems, resulting in the proliferation of nonnative species that are adapted to still waters and are able to move downstream or upstream of the reservoir (BIP 2012). Additionally, persistent water releases from dams throughout the year changes the water supply from ephemeral to permanent, which maintains nonnative predator populations (Campbell et al. 1996, p. 16; Madden-Smith et al. 2003, p. 3). Finally, reservoirs block in-stream movement of arroyo toads, which effectively isolates populations upstream and downstream of dams and may preclude recolonization of areas formerly occupied by the arroyo toad (Campbell et al. 1996, p. 18).

The ongoing impacts of dam operations to arroyo toads and their habitat have been reduced at four river basins since the time of listing through conservation measures. Recent coordination among the California Department of Water Resources, Forest Service, and Fish and Wildlife Service have resulted in releases from Pyramid Dam into Piru Creek that more closely mimic natural flows, benefitting the arroyo toad (Service 2009). In 2006, the Sweetwater Authority (Authority) implemented a Standard Operating Procedure of Loveland Reservoir to Sweetwater Reservoir water transfers in the lower Sweetwater River so that, if possible, no water is released during the arroyo toad breeding season except in the event of an emergency. Although these procedures are voluntary and may need further review, they improve on the prior conditions (water transfers occurring during the spring), which lessens the impacts to arroyo toads in the lower Sweetwater River.

The City of San Diego (City) has a voluntary internal policy guiding water transfers at two of the City's reservoir systems: (1) Morena Reservoir to Barrett Reservoir to Otay Reservoir; and (2) Sutherland Reservoir to San Vicente Reservoir. This policy minimizes impacts of water transfers to the Lower Cottonwood Creek Basin occurrence below Barrett Dam and the Upper San Diego River Basin occurrence that is above San Vicente Reservoir (it does not affect water transfers within the Upper San Diego River Basin occurrence below Cuyamaca Dam). Water transfers generally occur during winter months between October and March in order to take advantage of existing flows and minimize water lost to the river system, and avoid the breeding season of arroyo toad. City staff coordinates with the Service and contracts with an arroyo toad specialist to monitor before, during, and after a water transfer event (McGinnis, City of San Diego, pers. comm. 2012).

Very limited information is available on the effects of the operation of dams and water diversions in Mexico. Out of the 10 drainages in Mexico where arroyo toads occur, only the Rio Tijuana-Rio Las Palmas drainage has a municipal dam (Lovich 2009, p. 86). Consequently, the magnitude of effects on arroyo toad occurrences from the operation of dams and water diversions in Mexico is unclear.

Overall, the magnitude of the threat posed by the operation of dams and related water diversions has decreased since the time of listing. In four river basins, water releases that more closely mimic natural flow regimes have strongly decreased the impact of dams on local arroyo toad populations. However, within the other 15 river basins with dams and reservoirs, the altered stream dynamics resulting from dam operation result in encouragement of nonnative predators and nonnative, invasive plants, direct removal of habitat that supports arroyo toad populations, reduction of arroyo toad dispersal, and direct mortality of arroyo toads at all life stages. While construction of new dams and reservoirs that would result in destruction of habitat and extirpation of occurrences is not expected, operation of existing dams and reservoirs in 19 river basins will continue to alter the stream dynamics of arroyo toad habitat and affect the long-term survival and reproductive success of arroyo toad populations. Though the magnitude of the impacts from dam operations has decreased since the time of listing, because of the large scope and serious severity posed by the operation of dams and water diversions, we expect that this threat will continue to cause a high level of impact to the arroyo toad and its habitat now and into the future (Service 2013, pp. 39-45).

Mining and Prospecting

At the time of listing, in-stream recreational suction dredging for gold caused localized impacts and population effects to the arroyo toad. For example, in 1991, during the Memorial Day weekend, four small dredges operating on Piru Creek in the Los Padres National Forest produced sedimentation visible more than 0.8 mi (1 km) downstream and adversely affected 40,000 to 60,000 arroyo toad larvae. Subsequent surveys revealed nearly total loss of the species in this stream section; fewer than 100 larvae survived, and only 4 juvenile toads were located (Sweet 1992, pp. 180-187). Since listing, we have become aware of impacts to arroyo toad habitat from sand and gravel mining, which causes runoff that can degrade arroyo toad habitat. Currently, sand, gravel, and suction dredge mining are taking place in 8 of the 35 river basins occupied by arroyo toads rangewide (Service 2013, p. 46); however, the impact of mining activities has been greatly reduced since the time of listing.

Where sand, gravel, and suction dredge mining activities occur, they can cause substantial alteration of arroyo toad habitat by degrading water quality, altering stream morphology, increasing siltation downstream, and creating deep pools that hold water year-round for introduced predators of arroyo toad eggs and larvae (Campbell et al. 1996, p. 16). Mining can also increase water temperature and turbidity and result in degrading or even destroying arroyo toad breeding habitat (CDFG 2005). The increase in suspended sediments in the stream can suffocate arroyo toad eggs and small larvae (Sweet 1992, pp. 179-185; Campbell et al. 1996, p. 16). In the case of suction dredge mining, arroyo toad eggs and larvae can also be entrained in the suction pump and killed (Reine and Clarke 1998, pp. 1, 12).

Though some mining activities are currently taking place, their impacts are localized. At two of the six river basins in the United States impacted by mines, for example, sand and gravel extraction continues to degrade habitat and increase sedimentation (Service 2008). Additionally, due to a 2012 change in CDFW regulations, suction dredge mining is now prohibited in Class A streams (Title 14, Natural Resources, §§ 228 and 228.5). Most of the streams and rivers occupied by arroyo toads in the United States are now classified as Class A (24 out of 25 occurrences in the United States), and, therefore, suction dredge mining no longer occurs in those streams. However, suction dredge mining could potentially impact arroyo toads in Lower Cottonwood Creek Basin. These new regulations do not affect current sand and gravel mining practices, which currently occur or have recently occurred at 4 of 25 occurrences in the United States.

In Baja California, Mexico, the sand mining industry is impacting the Rio Guadalupe, Rio Las Palmas, Rio Ensenada, and other smaller coastal arroyos (Lovich 2009, p. 90). Sand and rock are extracted in such large volumes that the hydrology in coastal canyons is affected, and associated riparian habitats are eliminated. The public has demonstrated opposition to this scale of sand mining, but the Mexican Government supports the industry (Lovich 2009, p. 90). Therefore, we find that mining activities pose a threat to the arroyo toad in Mexico (Service 2013, pp. 45-47).

Though some mining activities continue to occur in habitat that supports arroyo toad, these impacts have decreased in magnitude since the time of listing. Furthermore, given the reclassification of streams to disallow suction dredge mining, its impacts are unlikely to increase in the foreseeable future. Overall, as the scope of this threat is low (affecting 8 of 35 river basins rangewide), and the severity of the threat is moderate (likely to moderately degrade habitat or reduce 11 to 30 percent of occurrences), we find that mining activities are having a low level of impact on the arroyo toad in the United States (Service 2013, pp. 47-48).

Livestock Grazing

At the time of listing, we found overgrazing in riparian areas to be a potential source of mortality to arroyo toads, although it was not considered to be one of the factors that most adversely impacted the arroyo toad. Poorly managed grazing is known to have multiple impacts on arroyo toads and their habitat. Pastured cattle (and other livestock) can contribute to stream bank degradation and erosion (Moore 2000, p. 1). Cattle grazing can result in soil compaction, loss or reduction in vegetative bank cover, stream bank collapse, and increased in-stream water temperatures from loss of shade. Cattle can also trample or compact sandbars, preventing burrowing by adult toads (Campbell et al. 1996, p. 27). The extent of grazing at the time of listing is unknown; cattle grazing currently occurs at 10 of the 35 arroyo toad occurrences rangewide (Service 2013, pp. 48-49).

Since the time of listing, significant progress has been made toward reducing or eliminating the impact of cattle grazing. The Forest Service has developed grazing allotment management guidelines to reduce the effects of livestock grazing on threatened and endangered species and habitat. Consultation between the Forest Service and the Service through section 7 of the Act on grazing allotment permit renewals has resulted in minimization and mitigation of impacts on arroyo toads (Service 2000a; 2001a; 2001b; 2004a; 2009). Los Padres National Forest has kept the Sisquoc Grazing Allotment in the Santa Maria River Basin vacant for approximately 10 years due to concerns about impacts to arroyo toads and other sensitive riparian species (Cooper 2009, pers. comm.). On the Cleveland National Forest, grazing has a minimal impact because the Forest Service excluded most of the habitat occupied by arroyo toads from grazing allotments during the 1990s. The Cleveland National Forest has also formally excluded grazing from some arroyo toad habitat, including 12,112 ac (4,901 ha) centered around riparian areas (Service 2005, entire), as well as areas with arroyo toad habitat in Lower Santa Ysabel Creek Basin and Upper Cottonwood Creek Basin (Service 2001a, entire). The Pine Valley Allotment, which was the only streamside grazing allotment in the Cleveland National Forest still active at the time of the 5-year review in 2009, is now vacant (Winter 2012, pers. comm.).

Though grazing can result in alteration of the streamside habitat that supports arroyo toads, multiple conservation actions have been put into place since the time of listing. We anticipate that reductions of impacts from grazing will continue to be implemented through the continued implementation of the forest plans, which include minimization measures implemented on grazing allotments issued by Los Padres and Cleveland National Forest. We also expect continued consultation between the Forest Service and the Service through the section 7 consultation process. These two forests manage portions of nine river basins that support arroyo toads. Furthermore, we expect that the conservation measures currently in place will continue to be implemented regardless of the listing status of the arroyo toad.

Some impacts from livestock grazing are occurring in Mexico (Lovich 2009, p. 85); however, the magnitude of these impacts is unclear, and we have no information on how many river basins in Mexico are impacted by grazing activity.

Overall, grazing is a threat with a restricted scope, as only 10 of the 25 river basins in the United States that support arroyo toads are currently affected by livestock grazing. Based on the best available scientific and commercial information, the remaining 15 river basins are not of appropriate land use or habitat type to support grazing; therefore, we do not expect that grazing will occur at these river basins in the future. At the river basins where grazing does occur, reductions in the level of grazing and improved management practices have significantly reduced the impacts to arroyo toads and riparian habitat. We conclude that grazing has a moderate impact on arroyo toads. Although it may result in localized impacts to streams, which reduce the quality of habitat and may cause some decrease in rates of survival and reproduction within populations, it is unlikely to result in a long-term decline in populations. Therefore, we find that grazing is a low-level threat to the arroyo toad and its habitat (Service 2013, pp. 47-50).

Roads and Road Maintenance

When roads occur within or in close proximity to stream habitat that supports arroyo toads, road use, construction and maintenance can have a detrimental impact on arroyo toads and their habitat. Toads are crushed by equipment on the roads or when vehicles use low water crossings during normal daytime project activities. Toads can also be harmed or disturbed when rocks and debris are removed from the road surface or ditches near habitat. On unpaved, sandy roads, toad mortality can occur because increased food sources (ants, other insects) lure toads onto roads at night, and because arroyo toads like to burrow into sandy roadbeds during the day (Sandburg, U.S. Forest Service, pers. comm., 1997). At the time of listing, the use of heavy equipment in yearly reconstruction of roads and stream crossings in the national forests caused ongoing impacts to arroyo toads and their habitat. On the Cleveland National Forest, roads are still identified as one of the top three threats to arroyo toad, along with drought and aquatic predators (Winter, pers. comm. 2012). Currently, impacts from road construction, use, and maintenance on Federal, public, and private lands affect 20 out of the 35 river basins where the arroyo toad is known to occur.

Low water stream crossings pose a particular risk to arroyo toads. Unimproved stream crossings can develop characteristics of suitable toad habitat that attracts arroyo toads—shallow, sand or gravel-based pools with low current velocity and minimal shoreline woody vegetation (USFS 2012, p. 45). Adults burrow during the day but come out at night to forage, so are more likely be killed by nighttime traffic or during wet weather. Vehicles using low water crossings over streams cause increased siltation, which can cover and suffocate egg masses and larvae (Service 2000b, p. 14). Eggs or larvae could also be crushed or disturbed when vehicles use low water crossings (Service 2000b, p. 13). Hardened crossings lack the substrate that toads prefer, but adults will forage on any stream crossing at night (USFS 2012, p. 45).

Apart from direct injury to toads, road maintenance can also alter habitat so that it is unsuitable for arroyo toads. Low water crossing maintenance above or below crossings, such as removal or shaping of sediments, debris, or vegetation, can alter habitat suitability for arroyo toads by increasing the flow over the crossing (USFS 2012, p. 45). Soil disturbance, such as can occur from vehicle use, has been directly implicated in both lethal and sublethal effects on amphibians (Maxell and Hokit 1999, p. 2.11). If not contained, road construction may cause increased sedimentation in adjoining aquatic habitats (Maxell and Hokit 1999, p. 2.11). Traffic on native surface and dirt roads causes soil erosion that can run off into streams, particularly during wet weather. Furthermore, pollutants from exhaust and tire wear can build up along roadsides and enter riparian areas.

Since the time of listing, the impacts of roads and road maintenance have been reduced through conservation measures and protection under the Act. To reduce this threat on Federal lands, Los Padres National Forest reinitiated section 7 consultation (8-8-12-F-43) (Service 2012, entire) with the Service for ongoing activities related to their transportation system and road use in the Santa Clara River Basin and Santa Ynez River Basin. Los Padres National Forest must repair and maintain approximately 1,025 mi (1,649 km) of roads and 137 low water stream crossings on forest lands, and implements best management practices and conservation measures to protect the arroyo toad before conducting any road or water crossing maintenance. Such measures may include pre-construction surveys, relocating individuals to suitable habitat nearby, removing nonnative species, avoiding maintenance during the breeding season, and developing water control plans. In addition, Los Padres National Forest has rerouted trails and closed roads in arroyo toad habitat. In the Southern Recovery Unit, the Angeles, Cleveland, and San Bernardino National Forests have completed similar section 7 consultations to reduce or avoid effects from ongoing road use and maintenance to arroyo toads and habitat within the portions of 11 arroyo toad occurrences that occur on their land. The minimization and mitigation measures within these consultations have been incorporated into recent management plans completed by the Forest Service; the measures in these plans are not dependent on the listing status of the arroyo toad.

Very limited information is available on the effects of roads and road maintenance in Mexico. We are aware that one paved road, Highway 1, is impacting one river basin that supports arroyo toads in Mexico (Lovich 2009, pp. 79, 86); however, the magnitude of impacts from the use and maintenance of this coastal highway is unclear.

Overall, conservation measures have recently reduced the threat of road use and construction and maintenance at three occurrences. Furthermore, we expect to continue to coordinate with our partners through existing section 7 processes to minimize and mitigate the impacts of roads and road maintenance. Overall, this threat has a large scope, affecting 20 of 35 river basins, and a moderate severity, as it can potentially cause effects such as permanent loss of breeding habitat, and creation of barriers to dispersal. Therefore, we find that roads and road maintenance have a moderate level of impact on the arroyo toad and its habitat (Service 2013, pp. 51-54).

Recreation

At the time of listing, recreational activities in riparian wetlands had substantial negative effects on arroyo toad habitat and individuals. Streamside campgrounds in southern California national forests were frequently located adjacent to arroyo toad habitat (Sweet 1992). With nearly 20 million people living within driving distance of the national forests and other public lands in southern California, recreational access and its subsequent effects are an ongoing concern (CDFG 2005). Currently, 22 out of 35 river basins are impacted by recreational facilities and activities, including 13 river basins with land managed by the Forest Service.

Recreational activities that currently affect the arroyo toad are trail use, swimming, trail maintenance, and off-highway vehicle (OHV) activity. Activities such as construction of roads, trails, recreational facilities, and water impoundments may permanently replace natural toad habitat (Maxell and Hokit 1999, p. 2.15). Recreational use may also degrade habitat; for example, grazing by pack horses at stream crossings may impact streamside vegetation or trample various life stages of the arroyo toad (USFS 2013a, p. 17). Additionally, campgrounds focus large numbers of people and intensive use on limited habitats. Streamside campgrounds in the three southern California National Forests (Los Padres, Angeles, and Cleveland) have frequently been located in or near (165 to 300 feet (ft) (50 to 92 meters (m)) arroyo toad habitat (Sweet 1992, pp. 158-160). In the Los Padres National Forest, almost all occurrences that support arroyo toads are located where hiking trails follow the floodplain and cross the stream channels in multiple locations within a short distance. Streamside campgrounds and recreational activities also reduce riparian vegetation and increase soil erosion and sedimentation that can cover and kill algae, bacteria, and fungi on the surface of rocks that act as food sources for arroyo toad tadpoles (Sweet 1992, p. 190; USFS 2013a, p. 17).

Disturbances created by recreation favor the germination, establishment, and growth of nonnative plant species, substantially altering food availability within a habitat (Service 2013a, pp. 17-18). Furthermore, people swimming and wading in the creek increases the turbidity of water and can create excess sedimentation, which is known to bury eggs or suffocate larvae (Sweet 1992, p. 150). Decreased populations of amphibians including arroyo toads have been found downstream from popular swimming destinations in Cleveland National Forest and Cuyamaca Rancho State Park (Brown, USGS, pers. comm. 2012). Currently, recreational use (mostly campgrounds and swimming) is still impacting six river basins in Cleveland National Forest (Winter, pers. comm. 2012).

OHVs may also pose a threat to arroyo toads. Sweet (1992, pp. 162-163) observed OHV use in arroyo toad breeding sites on the Los Padres National Forest that resulted in the deaths of arroyo toad egg clutches, larvae, and juveniles. OHVs used on sandy, unpaved roads may cause mortality of adult toads because increased food sources (ants, other insects) lure toads onto roads at night and because arroyo toads like to burrow into sandy roadbeds during the day (Sandburg, USFS, pers. comm., 1997). In addition to direct mortality resulting from collisions, OHVs may disrupt habitat to the point that it becomes unusable by herpetofauna (Maxell and Hokit 1999, p. 2.10). OHVs spread seeds of nonnative plants and disturb soils, contributing to excess erosion and sedimentation of aquatic habitats. Noise from on- and off-road vehicles is also likely to have negative indirect impacts on amphibians. Although we did not find studies that targeted arroyo toads specifically, a study by Nash et al. (1970), found that leopard frogs exposed to loud noises (120 decibels) remained immobilized for much longer periods of time than a similarly handled control group. Thus, an immobility reaction resulting from noise-induced fear could increase mortality of amphibians that inhabit areas used by OHVs or individuals that are crossing roads by inhibiting their ability to find shelter or move across a roadway (Maxell and Hokit 1999, pp. 2.2-2.10).

Conservation measures have been enacted in habitat surrounding several river basins to reduce or eliminate the impact of recreational activities on arroyo toads and their habitat. The Los Padres, Angeles, Cleveland and San Bernardino National Forests are taking measures to decrease the effects of recreational activities on arroyo toads and their habitat, including seasonal or permanent closure of campgrounds, posting of interpretive signs, closure of trails, installation of stream crossings, and public education programs (Service 1999, pp. 55-56; Service 2003a, entire; Service 2005, entire; Cooper 2009, pers. comm.; USFS 2013b, pp. 1-85).

Where recreational activities occur, they may result in the loss and fragmentation of arroyo toad habitat; however, conservation measures have reduced the effects of recreational use on the arroyo toad and its habitat at 6 of the 22 occurrences where recreational activities occur. We do not have any information on whether recreational activities are impacting river basins that support arroyo toads in Mexico, but we would expect the level and types of recreational activities to be similar and to have similar impacts as in the United States. Overall, because this threat has a large scope, and because it has a moderate level of severity, we conclude that effects from recreational use have a medium level of impact on the arroyo toad and its habitat (Service 2013, pp. 54-59).

Invasive, Nonnative Plants

At the time of listing, invasive, nonnative plants were not identified as a threat to arroyo toads. Since then, nonnative plants have been recorded in 16 of the 35 river basins that support arroyo toads. Nonnative plant species impact arroyo toads and their habitat by altering the natural hydrology of stream drainages and eliminating sandbars, breeding pools, and upland habitats (Service 2009, p. 11). Nonnative plants can be spread by OHVs, recreation, livestock, and camping activities (Maxell and Hokit 1999, p. 2.8). Currently, 16 of 35 river basins are impacted by invasive, nonnative plants.

The most problematic nonnative plant species in aquatic systems in southern California is Arundo donax (giant reed), which is widespread along the Ventura, Santa Clara, Santa Ana, Santa Margarita, San Luis Rey, and San Diego Rivers (CDFG 2005). Giant reed invades stream banks and lakeshores, where it can completely displace native vegetation, reduce wildlife habitat, increase fire risk, and alter flow regimes, resulting in flooding (Ventura County 2006, pp. 21-23). Additionally, as of 2010, dense stands of giant reed were still common along sections of the lower Santa Margarita River on MCB Camp Pendleton despite control efforts (Brehme et al. 2011, p. 32).

Another problematic nonnative species, Tamarix ramosissima (tamarisk), is less widespread than giant reed but also invades riparian habitats in the above-listed rivers and is distributed in coastal and desert drainages (Coffman et al. 2005, p. 2724). Tamarisk can replace or displace native woody species such as cottonwood and willow that occupy similar habitats, especially when timing and amount of peak water discharge, salinity, temperature, and substrate texture have been altered by human activities (Carpenter 2004, pp. 1-30). It is an aggressive, woody invasive plant that can tolerate a variety of environmental conditions and has become established over as much as a million acres of floodplains, riparian areas, wetlands, and lake margins in the western United States (Carpenter 2004, pp. 1-30). Tamarisk also consumes large quantities of water, possibly more than woody native plant species occupying the same habitat (Carpenter 2004, p. 3). Highly resistant to removal by flooding, tamarisk has the potential to form dense corridors along most large streams. Where this has been allowed to occur, tamarisk has replaced native vegetation, invaded sand bars, and led to channelization by constricting flood flows. In recent years, tamarisk has been recorded in all watersheds on MCB Camp Pendleton, although large stands persisted only along the lower Santa Margarita River (Brehme et al. 2011, p. 32).

Centaurea solstitialis (yellow star thistle) and Nasturtium officinale (watercress) are also altering the habitat that supports the arroyo toad. Yellow star thistle is one of the most ecologically and economically damaging nonnative plants in California (UC Davis 2007, p. 1). It is a fast-growing invasive plant whose taproot can reach over 3 ft (1 m) deep into the soil, allowing it to thrive during dry, hot summers. When yellow star thistle becomes well-established on stream terraces, arroyo toads are unable to dig burrows for shelter or estivation (Sweet 2007a, p. 1). Watercress can also invade arroyo toad habitat. After a fire in the upper Sweetwater River resulted in increased sedimentation that created more breeding habitat for the arroyo toad, watercress subsequently invaded and covered the water surface, and arroyo toad recruitment declined (Brown, USGS, pers. comm. 2012). It is possible that, while reducing available breeding area, the watercress reduced detectability of arroyo toads. However, in sandy open areas, larvae of other toad species were detected while arroyo toads were not (Brown, USGS, pers. comm. 2012). Watercress has become well established in the Lower Santa Margarita River Basin, and scattered patches of watercress have been observed in the upper portions of San Mateo and San Onofre Creeks (Brehme et al. 2011, p. 32).

Conservation measures and management are currently being enacted to reduce the impact of nonnative plants on arroyo toads. The Los Padres National Forest has made a concerted effort to remove giant reed and tamarisk from arroyo toad habitat. Forest Service staff and volunteers conduct annual tamarisk removal along portions of Piru Creek, Sisquoc River, Santa Ynez River, and Sespe Creek to protect and restore arroyo toad habitat. At MCB Camp Pendleton, measures mandating control of nonnative plants have been implemented through section 7 consultation (Service 1995, pp. 1, 26, 32, 35). These measures are further described and incorporated into the most recent Integrated National Resources Management Plan (INRMP) for MCB Camp Pendleton (MCB Camp Pendleton 2007, pp. C-1-C-19). Removal efforts on the Base have reduced prevalence of giant reed, with the help of naturally occurring scouring from flooding events. Researchers recommend continued eradication efforts of nonnative plants on MCB Camp Pendleton, particularly those that alter the natural hydrology of watersheds occupied by arroyo toad (Brehme et al. 2011, p. 38). Though these efforts have aided in decreasing the threats posed by nonnative plants, management methods of these plants are limited, as control by herbicides and pesticides can have impacts to arroyo toads.

Where invasive, nonnative plants occur, they can degrade arroyo toad habitat and alter stream dynamics. Though conservation measures have been successful in reducing the spread of these nonnative plants at 6 of the 16 occurrences affected by nonnative plants, impacts continue. We do not have any information regarding whether invasive, nonnative plants are impacting river basins that support arroyo toads in Mexico, but would expect that some effects are occurring. While the impact of invasive, nonnative plants will not result in the immediate loss of habitat and extirpation of populations, they will continue to degrade arroyo toad habitat and reduce its carrying capacity over the long term and result in decreased survival and reproduction of affected populations. Overall, due to the large scope and moderate severity of the effects of invasive, nonnative plants on arroyo toads and their habitat, we find that this threat has a medium level of impact (Service 2013, pp. 54-63).

Introduced Predator Species

At the time of listing, nonnative predators had caused substantial reductions in the sizes of extant populations of arroyo toads, and had caused arroyo toads to disappear from large portions of historically occupied habitat (Jennings and Hayes 1994, p. 57). The introduction of nonnative aquatic species has been facilitated by the construction of the California Aqueduct and other sources of inter-basin water transport (Service 1999, p. 48). Today, 28 of 35 river basins are impacted by introduced predator species.

Predatory species known to prey on arroyo toad adults, tadpoles, or eggs include green sunfish (Lepomis cyanellus), largemouth bass (Micropterous salmoides), black bullhead (Ictalurus nebulosus), prickly sculpin (Cottus asper), stocked rainbow trout (Oncorhynchus mykiss), oriental gobies (Tridentiger spp.), red shiners (Notropis lutrensis), American bullfrogs (Lithobates catesbeiana), African clawed frogs (Xenopus laevis), crayfish (Procambarus clarkia), and mammalian species including raccoons (Procyon lotor) and opossums (Didelphis virginiana) (Sweet 1992, pp. 118-122; Service 1999, pp. 17, 48). All of these species prey on arroyo toad tadpoles, and all but the crayfish, red shiners, and African clawed frogs were known to impact arroyo toads at the time of listing (59 FR 64859; December 16, 1994). Where nonnative predators occur, they can be widespread and occur in high abundances. For example, surveys along San Mateo Creek on the Cleveland National Forest confirmed a very high abundance and widespread distribution of nonnative aquatic species, with approximately 77 percent of the “major” pools and 45 percent of the “minor” pools occupied by at least one nonnative species (ECORP 2004, pp. 18, 25).

Bullfrogs and African clawed frogs are two of the primary introduced species that prey upon arroyo toads. Both species feed on arroyo toads at all life stages (Sweet 1992, p. 128; Ramirez 2007, p. 102). Sweet (1992, p. 132) found that bullfrogs, which target calling male arroyo toads, were associated with resulting sex ratio biases in arroyo toads of 1:14 (1 male to 14 females) in Sespe Creek. Of 40 bullfrogs captured along the Santa Margarita River in 2008, arroyo toad remains were found in the stomach contents of over half of them (Brehme et al. 2011, p. 44). USGS further estimated 125 arroyo toads were being consumed by bullfrogs per kilometer per month along the lower Santa Margarita River (Backin and Brehme, USGS, pers. comm. 2012). Additionally, over the past 20 years, at least 60 species of fishes have been introduced to the western United States, 59 percent of which are predatory. Arroyo toad tadpoles are subject to predation by many of these introduced fish species, especially green sunfish and prickly sculpin. Mosquitofish (Gambusia affinis) and crayfish have also been observed to prey on both tadpoles and eggs.

In recent years, wild pigs (Sus scrofa) have been recognized as a likely new stressor to arroyo toads, and are now found at 5 of 35 river basins. Arroyo toads are expected to be adversely affected in the San Diego River watershed as a result of wild pig introductions (SDNHM 2010, pp. 3, 23, 29, 32, 34-35). The mild climate of San Diego County can support rapid population growth and expansion of wild pig populations, making eradication of wild pigs unlikely and control difficult (CBI 2009, pp. 14, 20-21; SDNHM 2010, p. 42; Winchell, USFWS, pers. comm. 2012). Wild pigs negatively affect almost all aspects of ecosystem structure and function; for example, areas where pigs have rooted appear as if rototilled, leaving large areas of bare earth that can be easily colonized by invasive, nonnative weeds (Jolley et al. 2010, p. 519). Wild pigs may also directly consume arroyo toads, as they are opportunistic omnivores whose diet has been observed to include reptiles and amphibians (Barrett and Birmingham 1994, p. D-66; Wilcox and Van Vuren 2009, p. 114; Jolley et al. 2010, pp. 520-522).

Detrimental effects of arroyo toad predation have been demonstrated throughout the range of the species. Along the Santa Margarita River in MCB Camp Pendleton, occupancy models for wet arroyo toad habitat indicate that nonnative aquatic predators had the largest negative impact on arroyo toad occupancy and detectability (Brehme et al. 2006, p. 43). This negative association weakened to a level of insignificance in 2009—which corresponded with elevated aquatic predator removal efforts—but returned again in 2010 along with a greater number of sites where nonnative predator fish and crayfish were detected (Brehme et al. 2011, pp. 29, 31, 35-36). Brehme et al. (2011, pp. 2-3) strongly recommend continued control of nonnative aquatic species, especially bullfrogs and crayfish, for continued persistence of arroyo toad in the lower Santa Margarita River. Once established, nonnative predators appear resilient and persist in the system except when drying creates a period of habitat unsuitability (Miller et al. 2012, pp. 2, 7). Thus, Brehme et al. (2011, p. 2) recommend modifying water releases along the lower Santa Margarita River to simulate a more natural hydrology pattern (i.e., no releases in summer months), along with continued, elevated control of nonnative aquatic species.

Some progress has been made since listing toward reducing the threat of introduced predators to arroyo toads and their habitat. Efforts are being made to remove or reduce nonnative animal populations in several areas, including the Santa Ynez River Basin on the Los Padres National Forest and in the Santa Clara River Basin on the Angeles National Forest. Forest Service personnel have also worked with animal control agencies to reduce the releases of raccoons and opossums in arroyo toad habitats. At MCB Camp Pendleton, pursuant to a biological opinion issued in 1995, the Base must take measures to assess threats to the survival and recovery of arroyo toad, including those from nonnative predators (Service 1995, pp. 1, 26, 32, 35). Measures to control nonnative predators are further described and incorporated in the most recent INRMP for MCB Camp Pendleton (MCB Camp Pendleton 2007, pp. C-1-C-19). Nonnative aquatic predator removal on Base has been ongoing for several years and has shown a benefit to arroyo toads in the Lower Santa Margarita River Basin.

In the San Juan Creek Basin in Orange County, a 6-year aquatic predator control program was conducted as mitigation for two California Department of Transportation (CalTrans) projects on adjacent State Route 74. The program was effective in reducing bullfrog adults and larvae from the headwaters of the creek and has slowed local proliferation of this species. Continuation of removal efforts is recommended within the creek and at downstream breeding populations that provide sources of dispersal into the study area (LSA and BonTerra 2012, pp. 12-13). However, the program ended in 2012. As another CalTrans project is anticipated along State Route 74, the work could be continued through this new project, but may not be initiated for another year or more. Actions such as these provide benefits only in the short term unless replaced with a long-term mechanism for continued predator control and/or eradication.

In order to address the impacts of feral pigs, the Cleveland National Forest prepared an environmental assessment of a proposed feral pig damage control project on the Forest, Bureau of Land Management lands, and on the Capitan Grande Indian Reservation (USDA 2012, p. 49). However, implementation of this project is uncertain. Securing funding and access to private lands where wild pigs might be found outside Federal lands are necessary in order to control this species, but are currently challenging (Winchell, USFWS, pers. comm. 2012).

Very limited information is available on the effects of introduced predators in Mexico. We are aware that introduced predators are present at all 10 river basins in Mexico that support arroyo toads (Lovich 2009, pp. 90-91); however, the magnitude of impacts on local populations is unknown.

Introduced predators are currently impacting arroyo toads at 28 out of the 35 river basins where the arroyo toad is known to occur. Where introduced predators occur, they have an extreme effect on arroyo toads and their habitats. Currently, 5 of the 28 river basins impacted by nonnative predators have conservation measures to mitigate the impacts of introduced predators. We find that introduced predators are the most important factor threatening the arroyo toad across its range. Introduced predators have a pervasive scope and an extreme threat severity, as introduced predators may cause reductions in population size or even extirpation of entire arroyo toad populations. Therefore, introduced predators are a threat with a very high impact on the toad and its habitat (Service 2013, pp. 64-69). However, despite this high level of impact, and the fact that bullfrogs and other predators have become well-established in arroyo toad habitat (Service 2013, p. 69), no populations have yet been extirpated.

Drought

At the time of listing, drought and the resultant deterioration of riparian habitats in Southern California was considered to be the most significant natural factor adversely affecting the arroyo toad. Though arroyo toads likely naturally evolved with periodic drought conditions, the 1994 listing rule concluded that drought conditions, when combined with alteration of natural flow regimes, had degraded riparian ecosystems and created extremely stressful conditions for most aquatic species; drought years are also known to result in low food supplies that can be detrimental to breeding arroyo toads (59 FR 64859, December 16, 1994). Today, 21 of the 25 occurrences in the United States are impacted by drought as exacerbated by altered flow regimes.

Drought conditions continue to impact both arroyo toad populations and the riparian habitat that supports them. As drought conditions increase, reduction in plant growth results in less available canopy cover and shade, which could increase predation rates on arroyo toads (Campbell et al. 1996, p. 12).

As stated in the 1994 listing rule, drought can also directly impact breeding arroyo toads. During drought conditions, plants produce fewer flowers for insects; fewer insects result in less available food for arroyo toads. A major concern regarding the effect of drought on arroyo toads is that female toads may not be able to find sufficient insect prey to build up enough fat storage for egg production in time to find a mate, resulting in no reproduction for that year (Sweet 1992, pp. 56, 172, and 190; Campbell et al. 1996, p. 11). In addition, if streams dry up too early in the breeding season, arroyo toad tadpoles may not have enough time to reach metamorphosis.

The habitat requirements and life history of the arroyo toad increases the impact of drought on the species. Most waterways occupied by arroyo toads are small and are ephemeral streams at high elevations. At lower elevations, impacts from drought on arroyo toad occurrences are exacerbated by alteration of hydrology from dams, water diversions, and groundwater extraction due to urbanization and agriculture (see discussion under the Urban Development, Agriculture, and Operation of Dams and Water Diversions sections above). The arroyo toad's lifespan averages 5 to 6 years; if drought persists longer than 6 years, entire populations could be extirpated for lack of water (Sweet 1992, p. 147; Backlin and Brehme, USGS, pers. comm. 2012). For example, arroyo toad occurrences in ephemeral streams on MCB Camp Pendleton (San Mateo Creek, San Onofre Creek basins) and Remote Training Site Warner Springs (Upper San Luis Rey River Basin) are at increased risk of extirpation from a prolonged drought and may be more dependent upon dispersal from more stable sites for recolonization (Brehme et al. 2006, pp. 43-44; Clark et al. 2011, p. 18).

At this time (March, 2014), the U.S. Drought Monitor shows that the worst drought category, “exceptional drought,” covers 9 percent of California and “extreme drought” (the second worst category) has increased to cover 67 percent of California (U.S. Drought Monitor 2014). According to the drought map (U.S. Drought Monitor 2014), most of the known arroyo toad occurrences in California are within drainages affected by the current drought. Therefore, we estimate that arroyo toad occurrences in 21 out of the 25 river basins in the United States are being affected by drought as exacerbated by altered hydrology. We do not have any information on how or if drought impacts river basins that support arroyo toads in Mexico but we expect that at least some of the river basins would be affected by regional droughts in similar fashion as the river basins in the United States, particularly at the one occurrence in Mexico that has a dam that alters natural flow regimes. Drought is certainly not unique in southern California and arroyo toad populations have withstood such episodes in the past, such that we are not aware of any occurrences that have become extirpated since listing due to drought conditions. However, the continued operation of dams and other water diversions adds stress to arroyo toad populations in ephemeral streams. Because the scope of the impacts from droughts are large (affecting 21 of the 25 river basins in the United States, and likely additional river basins in Mexico), and because drought has a serious level of severity on arroyo toad population and habitat, we find that drought conditions are a threat that results in a high level of impact to arroyo toad populations throughout their range (Service 2013, pp. 32-37).

Periodic Fire and Fire Suppression

In recent decades, large fires in the West have become more frequent, more widespread, and potentially more deadly to wildlife (Joint Fire Science Program 2007). At the time of listing, periodic fires were considered a threat to the arroyo toad and its habitat. In 1991, the Lions Fire on upper Sespe Creek in the Los Padres National Forest directly destroyed riparian habitat along Sespe Creek in the Santa Clara River Basin, which contained the largest known extant population of arroyo toads. The fire also destroyed 15 known breeding pools and over 50 percent of the known adult population on the Sespe drainage; however, by 1993, the population and its habitat had largely recovered due to recruitment from healthy populations of arroyo toads downstream (Sweet 1993, p. 19). Today, a robust population continues to persist in upper Sespe Creek. Currently, 22 of the 25 river basins in the United States are affected by fire suppression and periodic fire (Service 2013, p. 74), particularly as the natural fire regimes in Southern California have altered in frequency and intensity in recent decades. The remaining three river basins in the United States are not in habitats characterized as at high risk from altered fire regimes.

Periodic fires are considered a threat to the arroyo toads because fires can cause direct mortality of arroyo toads, destroy streamside vegetation, or eliminate vegetation that sustains the watershed. Pilliod et al. (2003, p. 176) state that the effects of fire may be greatest for amphibians that are habitat specialists, such as arroyo toads, compared to species that occupy different types of habitat and tolerate a wide range of environmental conditions. Other effects from fires include increased water temperature (as a result of canopy loss), toxic effects of smoke and fire retardant to water chemistry, increased sedimentation in streams and ponds that negatively impact reproduction and recruitment, and the effects of fire and post-fire conditions on arroyo toad terrestrial movements (Pilliod et al. 2003, pp. 163-181). In addition, wildfires often generate a substantial increase in erosion following the loss of protective ground cover and root anchors (Service 2003, p. 8). Although arroyo toads may recolonize areas impacted by fire (as occurred in upper Sespe Creek), recruitment from downstream occurrences is likely not possible in all locations due to habitat alteration from urbanization, existing dams, and other impacts.

Since the time the arroyo toad was listed in 1994, we now recognize that arroyo toads may also be impacted by fire suppression and firefighting activities, including fire line construction, hand line construction, bulldozing, water withdrawal using helicopters and pumps, backfiring, and fire camp and safety zone construction. After the 2007 Zaca Fire in Los Padres National Forest, a number of broad fuelbreaks and safety zones were bulldozed in several areas, including the lower portions of Mono and Indian Creeks (Sweet 2007a, pp. 1-9; 2007b, p. 1). At that time of year, a large proportion of the population would have been within burrows on the terraces, and any toads that were in burrows were very likely killed by bulldozing (Sweet 2007a, p. 1). Sweet (2007a, p. 1) also reported that the bulldozing operations also severely degraded upland habitat; for example, bulldozing created large piles of woody debris between the creek bed and the terraces that created substantial barriers to arroyo toad movement.

Periodic fire and fire suppression activities could potentially impact the arroyo toad through permanent loss of breeding habitat; permanent loss of upland habitat; and mortality, injury, or displacement of individuals. Currently, fire could impact 22 out of the 25 river basins in the United States where the arroyo toad is known to occur. Although we expect that fire could also impact river basins that support arroyo toads in Mexico, we currently lack information on habitat types and fire regimes in those areas.

Despite the potentially high level of impacts that fire and fire suppression can have on the species, very few fires have occurred in arroyo toad habitat since the time of listing, and we expect the incidence of fires will remain relatively constant. Fire and fire suppression activities have a large scope (affecting 22 of the 25 river basins in the United States) and a moderate severity, as fire could permanently or temporarily alter breeding habitat and cause mortality of arroyo toads. Therefore, we find that fire and fire suppression activities are a threat with a medium level of impact on the arroyo toad (Service 2013, pp. 72-37).

Climate Change

At the time of listing, the potential impacts of climate change to the arroyo toad and its habitat were not assessed. In the 2009 5-year review, we recognized that climate change could impact arroyo toad habitat; however, we lacked downscaled projections to make predictions on how a changing climate could impact arroyo toad habitat. Today, more information on downscaled climate projections has become available, and we conclude that effects of climate change could impact all 35 river basins that support arroyo toads and their habitat.

The term “climate change” refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, usually decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007a, p. 78). Various types of changes in climate can have direct or indirect effects on species, including the arroyo toad. Specific effects of climate change on the arroyo toad and its habitat depend on the magnitude of future changes.

Predictions for changes in temperature vary across the range of the arroyo toad. Downscaled projections of temperature were available for the 25 river basins in the United States that support arroyo toads. In the Central Western California Ecoregion, which contains four river basins in the northern portion of the arroyo toad's range, mean annual temperatures are predicted to increase from 1.6 to 1.9 °C (2.9 to 3.4 °F) by 2070 (PRBO 2011, pp. 35, 40). In the Southwestern California Ecoregion, which contains 21 river basins, temperatures are predicted to rise 1.7 to 2.2 °C (3.1 to 4.0 °F) (PRBO 2011, pp. 35, 40). High temperature events are expected to become more common in both ecoregions, and taxa with very narrow temperature tolerance levels may experience thermal stress to the point of direct mortality or diminished reproduction in the Southwestern California Ecoregion (PRBO 2011, pp. 38, 42).

There is a general lack of consensus of the effects of future climate change on precipitation patterns in both ecoregions. Some models suggest almost no change, whereas others project decreases of up to 32 percent in the Central Western California Ecoregion and 37 percent in the Southwestern California Ecoregion by 2070 (PRBO 2011, pp. 35, 40). Qualitative indicators of changes in concentrated near-surface water vapor (atmospheric rivers) above the Pacific Ocean in current projections suggest flood risks in California from warm-wet storms may increase beyond those known historically, mostly in the form of occasional more-extreme-than-historical storm seasons (Dettinger 2011, p. 522).

Changes in climate may impact the historical flow regimes that support arroyo toads. Snyder et al. (2004, pp. 594, 600) has projected that annual snow accumulation will decrease significantly for all hydrologic regions in California. Reduced snowpack will lead to reduced stream-flows, especially in the spring (EPA 2012). Additionally, rising temperatures cause snow to begin melting earlier in the year, which alters the timing of stream-flow in rivers that have their sources in mountainous areas (EPA 2013). Thus, taxa that rely on runoff from snowmelt will find streams and rivers drying up much earlier than before, and temperatures of the water are likely to increase due to a reduction in snowmelt contribution, likely altering riparian communities downstream (Snyder et al. 2004, p. 600; PRBO 2011, p. 42).

Additional impacts from climate change on arroyo toad habitat include reductions in groundwater systems and overall water supply. Surficial aquifers, which supply much of the flow to streams, lakes, wetlands, and springs, are likely to be the part of the groundwater system most sensitive to climate change (Alley et al. 1999, p. 21). Increased competition for water resources in the southwestern United States and Mexico are expected due to projected temperature increases, river-flow reductions, dwindling reservoirs, decreased groundwater recharge, and rapid population growth (EPA 2012). For example, the California Energy Commission (CEC) (2009, p. 22) predicts the combined effects of climate change, water use practices, and regional growth will expose San Diego County to greater risk of water shortfalls before 2050.

Aspects of arroyo toad life history and biology make them sensitive to potential climate-change-related impacts. Arroyo toads have a relative inability to disperse longer distances in order to occupy more favorable habitat conditions (i.e., move up and down stream corridors, or across river basins). This reduced adaptive capacity for arroyo toad is a function of its highly specialized habitat requirements, the dynamic nature of its habitat, natural barriers such as steep topography at higher elevations, and extensive fragmentation (unnatural barriers) within and between river basins from reservoirs, urbanization, agriculture, roads, and the introduction of nonnative plants and predators. Climate change also could affect the distribution of pathogens and their vectors, exposing arroyo toads (potentially with weakened immune systems as a result of other environmental stressors) to new pathogens (Blaustein et al. 2001, p. 1808). Climate change may result in a range shift of the fungus Batrachochytrium dendrobatidis (Bd), (Pounds et al. 2006, p. 161; Bosch et al. 2007, p. 253), a virulent amphibian disease. Though Bd has the potential to infect and kill arroyo toads (Nichols 2003, entire), it is not currently found within the range of the arroyo toad and, therefore, is not expected to affect arroyo toads in the near future, though it remains a potential future threat. More information on the potential impact of Bd on arroyo toads is available in the “Disease” section of the Species Report (Service 2013, pp. 62-64).

We conclude that because climate change is likely to impact all river basins where the arroyo toad is known to occur in the future, it has a pervasive scope. We also conclude that climate change has a serious severity, as it has the potential to degrade habitat and reduce populations over a large proportion of the range of the arroyo toad. Therefore, we expect that climate change will have a high level of impact on the arroyo toad and its habitat throughout its range. See additional discussion in the “Climate Change” section of the Species Report (Service 2013, pp. 75-80).

Alterations in habitat caused by dam operation, urban development, and invasive plants interact with nonnative predators by increasing the suitability of habitat for nonnative predators. Artificially sustained flow regimes from urban runoff, agricultural runoff, or dam operation create ponds that make habitat more suitable for bullfrogs and African clawed frogs than for arroyo toads (Sweet 1992, p. 156; Riley et al. 2005, p. 1905). Bullfrogs are well-adapted to deep-water conditions in ponded areas above dams, and dam releases can introduce them to downstream habitats (CDFG 2005, p. 178). In these modified systems with deep pools that persist year-round, both bullfrogs and arroyo toads must rely on the same habitat for breeding, even though their biological needs differ. This situation allows bullfrogs more opportunity to prey on all of the life stages of arroyo toads. Furthermore, the introduction of nonnative plant species may enhance the probability of successful introduction of other nonnative species. For example, there is some evidence that the survival of bullfrogs is enhanced by the presence of nonnative aquatic vegetation, which provides habitat more suitable to bullfrogs (Maxell and Hokit 1999, p. 2.8).

Invasive, nonnative plants can interact with fire to exacerbate its effects on riparian habitats and natural stream flow. Large riparian corridors have historically acted as natural firebreaks in southern California because of their low-lying topography and relative absence of flammable fuels. However, recent studies suggest that invasive plants are making riparian systems more fire-prone (Lambert et al. 2010). Giant reed and tamarisk are highly flammable, yet both species recover rapidly from fire by vigorous regrowth from below-ground plant parts. By contrast, cottonwoods, willows, and other native woody plants are much less tolerant of direct exposure to fire. Coffman et al. (2010, pp. 2723-2734) examined the regrowth rates of giant reed and nearby native woody vegetation following a 741-acre (300-ha) fire in the Santa Clara River watershed in 2005. Giant reed grew three to four times faster following the fire, and within 11 years, its density was 20 times greater than native species. This suggests that rapid regrowth of the highly flammable biomass creates an invasive plant-fire cycle that ultimately leads to a decline in native species in the ecosystem (Coffman et al. 2010, pp. 2730-2731).

Overall reductions in available habitat and population size through all the threats described in this document could cause further fragmentation of remaining arroyo toad populations. In particular, fragmentation can cause a “habitat split,” which is a separation between the two habitats critical for amphibian reproduction (Dixo et al. 2009, p. 1567). Habitat split may have an even larger effect on amphibian species with aquatic larval development and a terrestrial adult stage, such as the arroyo toad. Because of its dual habitat needs, the arroyo toad would be particularly susceptible to fragmentation that isolates breeding wetlands from upland areas that are the preferred habitats of adults. A number of studies have reported changes in genetic diversity associated with habitat fragmentation in amphibians (Young et al. 1996; Cushman 2006; Dixo et al. 2009). Genetic consequences of fragmentation center on a significant decrease in genetic diversity from (1) relatively low dispersal capabilities; (2) mortality when moving across roads and unsuitable habitats, which depresses growth rates; (3) narrow habitat tolerances; and (4) high vulnerability to pathogens, invasive species, climate change, and environmental pollutants (Cushman 2006, p. 232), ultimately leading to decreased survival or reproductive success.

Both dispersal ability and habitat availability determine how vulnerable arroyo toads are to reduced genetic diversity due to fragmentation. A study by Dixo et al. (2009, p. 1561) found that while a generalist species of amphibian (Rhinella ornata) was relatively tolerant of larger habitat fragments and maintained genetic diversity within them, gene flow in populations was negatively impacted in small patches of remaining habitat. This result implies that more specialized species like the arroyo toad would suffer even more severe genetic consequences from a fragmented and isolated landscape. In fact, arroyo toads have narrow environmental tolerances (highly specialized breeding, foraging, and shelter requirements), generally low dispersal abilities (Service 2013, pp. 6-7), and are vulnerable to being killed when burrowing into or crossing roads at night, all characteristics that exacerbate the negative effects of fragmentation, habitat loss, and habitat degradation. Combined with the small population sizes of arroyo toad occurrences, the species could find it difficult to persist while sustaining the impacts of urban, suburban, and rural development that have already resulted in severe arroyo toad habitat loss and fragmentation.

Effects of climate change may exacerbate other threats to the arroyo toad by increasing the frequency or severity of droughts which could result in increases in groundwater pumping and water diversion for urban and agriculture use, increasing runoff and erosion during extreme flood events, increasing the frequency or intensity of wildfire, and increasing the spread and virulence of pathogens.

Based on the best available scientific and commercial information, we find that the cumulative and combined effects of multiple factors acting on the arroyo toad are pervasive in scope, as they affect all arroyo toad occurrences, and are of serious severity, as these impacts could cause the loss or degradation of habitat and potential reductions in arroyo toad populations. Therefore, we conclude that combined effects of multiple factors pose a high level of threat to the arroyo toad and its habitat (Service 2013, pp. 84-85).

Recovery and Recovery Plan Implementation

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include: “Objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of [section 4 of the Act], that the species be removed from the list.” However, revisions to the list (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Therefore, recovery criteria should help indicate when we would anticipate an analysis of the five threat factors under section 4(a)(1) would result in a determination that a species is no longer an endangered species or threatened species because of any of the five statutory factors.

Thus, while recovery plans provide important guidance to the Service, States, and other partners on methods of minimizing threats to listed species and measurable objectives against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of or remove a species from the Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) is ultimately based on an analysis of the best scientific and commercial data then available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

The Service finalized a recovery plan for the arroyo toad in 1999 (Service 1999, pp. 1-119). The intent of the arroyo toad recovery plan was to prescribe recovery criteria that would demonstrate population stability and good habitat management over a period of years, which would indicate a substantially improved situation for arroyo toads. We anticipated later developing better information on the status and needs of arroyo toads, based on the surveys, research, and monitoring prescribed in the plan. Because the recovery plan incorporated an adaptive management approach to recovery, new information would be used to modify the recovery tasks and criteria, as appropriate (Service 1999, p. 108).

The overall objectives of the recovery plan are to prevent further loss of individuals, populations, and habitat critical for the survival of the species; and to recover existing populations to normal reproductive capacity to ensure viability in the long term, prevent extinction, maintain genetic viability, and improve conservation status (Service 1999, p. 108). The general goal to achieve recovery of the species is to establish sufficient self-sustaining populations. The recovery plan describes 22 river basins in the coastal and desert areas of 9 counties along the central and southern coast of California, and the recovery plan divides the range of the arroyo toad into three large recovery units—Northern, Southern, and Desert. These recovery units were established to reflect the ecological and geographic distribution of the species and its current and historic range (Service 1999, pp. 71-72); we have since received updated information on the number and extent of river basins that support arroyo toads. The Recovery Plan did not address any occurrences in Baja California, Mexico, as very limited information on the species was available when the plan was drafted.

The Recovery Plan provides two criteria for determining when the arroyo toad should be considered for reclassification from endangered to threatened status: (1) That management plans have been approved and implemented on federally managed lands to provide for securing the genetic and phenotypic variation of the arroyo toad in each recovery unit by conserving, maintaining, and restoring the riparian and upland habitats used by arroyo toads for breeding, foraging, and wintering habitat; and (2) that at least 20 self-sustaining metapopulations or populations must be maintained at specific locations (Service 1999, pp. 75-76). The Recovery Plan states that self-sustaining metapopulations or populations are those documented as having successful recruitment (i.e., inclusion of newly matured individuals into the breeding population) equal to 20 percent or more of the average number of breeding adults in 7 of 10 years of average to above average rainfall amounts with normal rainfall patterns. Such recruitment would be documented by statistically valid trend data indicating stable or increasing populations. In addition, self-sustaining populations require no direct human assistance (such as captive breeding or rearing, or translocation of toads between sites). This does not include activities such as patrolling or closing of roads, campgrounds, or recreational areas, or maintaining stream crossings or fencing (Service 2013, p. 76).

The Recovery Plan also states that arroyo toad should be considered for delisting when the genetic and phenotypic variation of the arroyo toad throughout its range in California is secured by maintaining 15 additional self-sustaining populations of arroyo toads in coastal plain, coastal slope, desert slope, and desert river basins, including known populations outside of Federal jurisdiction (Service 1999, p. 76).

In our analysis of the status of the arroyo toad in the Species Report, we reviewed the 22 river basin occurrences that were identified at the time of listing (59 FR 64859; Service 1999, pp. 12-31). Of these 22 occurrences, 4 occurrences (Whitewater River, San Felipe Creek, Vallecitos Creek, and Pinto Wash basins) were determined to be reported erroneously, as examination of locality records, museum specimens, photographs and other records, as well as new visits to these river basins found no evidence that they had ever supported arroyo toads (Ervin et al. 2013, pp. 197—204). Additionally, the status of arroyo toads was unknown in 2 river basins (Santa Ana River and Otay River) identified for recovery actions in the recovery plan (Service 1999, pp. 23-24, 30).

The arroyo toad is currently extant or presumed to be extant at 16 occurrences on federal lands, including those known at listing, while the status of the Otay River Basin and Lower Santa Ana River Basin occurrences is still unknown (Service 2013, Table 1). However, arroyo toads were redetected in the San Jacinto River Basin, which was previously identified as part of the greater Santa Ana River Basin in the recovery plan (Service 1999, pp. 23-24); the split of the Greater Santa Ana River Basin into two occurrences adds an additional occurrence to those recognized in the recovery plan. Thus, at least one population within each of these 17 river basins supporting the arroyo toad identified at listing is currently extant or presumed to be extant on Federal land. Furthermore, the arroyo toad is extant at 5 additional river basins with no populations on Federal land. Updated information indicates some locations where erroneously reported, while the arroyo toad has been identified in three additional river basins. The arroyo toad continues to occur at 22 occurrences. While some of these locations differ from those identified in the downlisting criteria, the number of populations exceeds that identified to meet downlisting criteria in the recovery plan. Finally, management plans have been approved and are being implemented to help conserve, maintain, and restore habitat on Federal lands (Service 2013, pp. 87-94).

As stated above, the recovery plan also identifies the need for populations or metapopulations to be self-sustaining. We do not have statistically valid trend data of arroyo toad occurrences that would allow us to project whether populations are declining, stable, or increasing as described in the Recovery Plan. We will instead consider, based on the best available scientific and commercial data, whether available information indicates arroyo toads are self-sustaining. Available survey data does report that arroyo toads remain extant or presumed extant at 28 of the 35 occurrences rangewide, and have continued to reproduce and survive throughout their range without direct human assistance as described in the Recovery Plan. After reviewing recent survey data, we have found that, while threats identified at listing are ongoing, arroyo toads remain extant or presumed extant at all of the occurrences occupied at listing. The best available information indicates that these populations have become self-sustaining in part due to the management plans that are being implemented to address some of the impacts of 9 of the 12 current threats (excluding fire, drought, and climate change); these plans are managed through coordinated efforts with our partners. The majority of waterways that support arroyo toads occur on Federal land where efforts are in progress to minimize impacts to listed species. Each of the National Forests have land management plans that include measures to minimize impacts to listed species. MCB Camp Pendleton and Fort Hunter Ligget Military Reservation have developed INRMPs that include conservation measures that benefit the arroyo toad. Five HCPs have also been completed and provide protection to covered species, including arroyo toad. These plans help to minimize some of the impacts from currently identified threats for continued conservation of this taxon.

Furthermore, we are not aware of any river basins that have been confirmed as completely extirpated (no arroyo toads at any rivers or streams within the river basin) since listing. Therefore, absent the survey data required to fulfill the definition of self-sustaining in the 1999 Recovery Plan, we conclude that these factors are indicative of self-sustaining populations.

As stated above, the intent of the recovery plan was to prescribe recovery criteria that would at least demonstrate population stability and good habitat management over a period of years, which would indicate a substantially improved situation for arroyo toads. Despite the important progress made toward meeting the reclassification criteria outlined in the 1999 recovery plan, we recognize that we have not met the exact number of occupied river basins identified in the plan. New information indicates that four of the river basins identified in the recovery plan were never occupied by arroyo toad, and there are eight river basins in the United States where no management plans have been approved or implemented on federally managed lands, in part because several of those basins do not contain a large amount of federally owned land. There are 17 river basins where management plans have been approved and implemented on federally managed land. At all those 17 occurrences, at least one population within the river basin has remained extant since the time of listing despite the threats still impacting arroyo toads and their habitat. Additionally, 5 occurrences on non-Federal lands have been acquired or conserved through other mechanisms, such as HCPs. We therefore conclude that we have met the overall intent of the downlisting criteria for the arroyo toad for the number of self-sustaining populations required for downlisting, in that these river basins demonstrate population stability and good habitat management over multiple years.

We also conclude that the arroyo toad has not met the delisting criteria, either by intent or by the letter of the plan, as we are only aware of management plans on non-Federal land at eight river basins, many of which overlap with the river basins that have management plans on Federal lands. Therefore, we have not achieved the delisting criteria of 15 additional self-sustaining arroyo toad populations outside of Federal jurisdiction. Further detail on our analysis of river basins and the recovery criteria is described in the Species Report (Service 2013, pp. 88-95).

Finding

An assessment of the need for a species' protection under the Act is based on whether a species is in danger of extinction or likely to become so because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. As required by section 4(a)(1) of the Act, we conducted a review of the status of the arroyo toad and assessed the five factors to evaluate whether the arroyo toad is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the species. We reviewed information presented in the 2011 petition, information available in our files and gathered through our 90-day finding in response to this petition, and other available published and unpublished information. We also consulted with species experts and land management staff with the Forest Service, CDFW, the California Department of Parks and Recreation (CDPR), and HCP permittees who are actively managing for the conservation of the arroyo toad.

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the exposure causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant the threat is. If the threat is significant, it may drive, or contribute to, the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of endangered or threatened under the Act.

Since the arroyo toad was listed in 1994, new threats have been identified: invasive, nonnative plants (Factors A and E) and climate change (Factors A and E). However, some factors known to pose a threat to the arroyo toad and its habitat at the time of listing are no longer of concern (for example, new dam construction or collection for scientific or commercial purposes). Conservation activities and preservation of habitat have further reduced threats from mining and prospecting (Factors A and E), livestock grazing (Factors A and E), roads and road maintenance (Factors A and E), and recreation (Factors A and E).

Overall, a large number of stressors continue to impact the arroyo toad. We find that urban development, operations of dams and water diversions, climate change, and drought continue to pose a high level of threat to the continued existence of the arroyo toad (affecting many or most occurrences, likely to seriously degrade habitat or reduce species occurrences), and introduced predators pose a very high level of threat to the arroyo toad (affecting most occurrences and likely to destroy habitat or eliminate species occurrences).

We also find that fire and fire suppression, invasive plants, recreation, roads and road maintenance and agriculture pose a moderate level of threat to the arroyo toad. These threats are of lower severity and are less widespread than the high and very high-level threats. Livestock and mining and prospecting continue to pose a threat to the arroyo toad; however, these threats pose a low level of impact to the arroyo toad and its habitat, meaning they affect a limited number of occurrences and moderately or slightly degrade habitat or reduce occurrences.

Though some conservation measures have been put in place to decrease the current impacts of urban development, operation of dams, and introduced predators, some threats present ongoing challenges. For example, management of introduced predators has been difficult to implement once predators are established and requires ongoing eradication and management efforts. Drought and climate change are not easily amenable to management through existing regulatory or conservation actions, although their impacts can be reduced through improved management and reduction of other stressors. The combination of factors, such as the interaction between altered flow regimes caused by urban development and operation of dams and water diversions with the invasive potential of nonnative plants and introduced predators, can also increase the magnitude of the individual threats.

As stated above, many of the threats currently impacting the arroyo toad were also known at the time of listing. However, we also recognize that both the magnitude and the type of some threats impacting the arroyo toad have changed since the time of listing. In the case of urban development, agriculture, and operations of dams and water diversions, conservation actions and consultation through section 7 of the Act have decreased the severity of these threats since the time of listing, such that these threats cause alteration or degradation of habitat rather than the direct and permanent removal of habitat that was a concern at the time of listing. Conservation measures have overall decreased the impact of multiple other threats facing the arroyo toad, including invasive plants, introduced predator species, road and road maintenance, recreation, and livestock grazing. Conservation efforts are being implemented on Federal lands in portions of 17 river basins supporting arroyo toad through the land management plans for each of the four southern California National Forests (Los Padres, Angeles, San Bernardino, and Cleveland), and through the INRMPs on MCB Camp Pendleton and Fort Hunter Liggett. In Mexico, 4 of 10 river basins are within or partially within a national park. Arroyo toads have remained extant or are presumed extant within the range they occupied at the time of listing. Furthermore, the known range of the species had been expanded with discovery of the Fort Hunter Liggett population in Monterey County.

We examined the downlisting criteria provided in the recovery plan for the arroyo toad (Service 1999). The downlisting recovery criteria state that for the arroyo toad to be reclassified to threatened, management plans must have been approved and implemented on federally managed lands, and at least 20 self-sustaining metapopulations or populations at specified locations on Federal lands must be maintained. Since the time of listing, we have found some of those populations were identified in error, as the river basins were never occupied by arroyo toads. Furthermore, current available information indicates that arroyo toads are persisting or are presumed to be persisting on Federal lands in 17 river basin occurrences and 5 additional occurrences on non-Federal lands, for a total of 22 extant or presumed extant occurrences in California. Portions of these occurrences are afforded protections from habitat destruction and from some effects of habitat alteration through current land management plans, INRMPs, and HCPs, and arroyo toads have persisted throughout their geographic range since listing, supporting that the occurrences are self-sustaining. Therefore, we find that the arroyo toad has met the intent of the criteria identified in the recovery plan for downlisting.

In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species. After review of the information pertaining to the five statutory factors, we find that the ongoing threats are not of sufficient imminence, intensity, or magnitude to indicate that arroyo toad is presently in danger of extinction throughout all its range. Although threats to the arroyo toad still exist and will continue into the foreseeable future, the Service, Forest Service, CDFW, CDPR, and HCP permittees are implementing conservation measures or regulatory actions to reduce the level of impact on the arroyo toad, and overall the magnitude of threats has decreased since the time of listing. We also find that the intent of the reclassification criteria in the recovery plan has been met. We therefore find the arroyo toad to be threatened throughout all its range.

Significant Portion of the Range

Having examined the status of the arroyo toad throughout all its range, we next examine whether the species is in danger of extinction in a significant portion of its range. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be “significant” and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats to the species occurs only in portions of the species' range that clearly would not meet the biologically based definition of “significant,” such portions will not warrant further consideration.

We consider the “range” of the arroyo toad to be from Fort Hunter Liggett in Monterey County, California, United States, to northwestern Baja California, Mexico. We are, therefore, proposing to revise the entry for the arroyo toad in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to reflect that the historical range in Mexico specifically pertains to Baja California and not the rest of the country. The historical range data in the List is non-regulatory in nature and is provided as information for the reader; this change therefore does not alter or limit application of the prohibitions of the Act or its implementation (50 CFR 17.11(d) and (e)). We consider a total of 28 river basins within this range to contain extant populations of arroyo toads. Since the toad was listed, several new populations have been found as a result of increased search efforts in Riverside County and Baja California; however, these areas were all within the historical range occupied by the species (WRCRCA 2006, p. 5; Lovich 2009, pp. 74-97). Since its listing, an arroyo toad population was discovered in the San Antonio River Basin at Fort Hunter Ligget, resulting in a northward expansion of the known range (by 93 mi (150 km)). However, this area was likely always part of the historical range of the species.

Habitat loss and other anthropogenic (human-caused) factors have resulted in the arroyo toad now being absent from several localities where it historically occurred. Jennings and Hayes (1994, p. 57) estimated that arroyo toads had been eliminated from 76 percent of their historical range prior to the time of listing. However, subsequent discoveries of new localities and remnant populations reduce this estimate to 65 percent (Lanoo 2005, p. 4). These disappearances from specific localities have created artificial gaps in the species' geographic range and resulted in a fragmented and patchy distribution. However, despite these gaps, arroyo toads remain extant in scattered populations throughout their historical range (Service 2013, Map 1). Overall, arroyo toads have not been extirpated from any of the 16 river basins known to be occupied at the time of listing (Service 2013, p. 94, Table 1).

Given the patchy distribution of arroyo toads throughout their range, no individual area is likely to be of greater biological or conservation importance than any other area. Additionally, river basins containing arroyo toad occurrences that are extant or presumed to be extant span the entire extent of the species' historical range. As such, we conclude that no major portion of the species' range has been lost, and that the lost historical range is not a significant portion of the arroyo toad's range.

We evaluated the current range of the arroyo toad to determine if potential threats to the species have any apparent geographic concentration. We examined threats from urban development (Factors A and E), agriculture (Factors A and E), operation of dams and water diversions (Factors A and E), mining and prospecting (Factors A and E), livestock grazing (Factors A and E), roads and road maintenance (Factors A and E), recreation (Factors A and E), invasive, nonnative plants (Factors A and E), introduced predator species (Factor C), drought (Factors A and E), fire and fire suppression (Factors A and E), and climate change (Factors A and E). While the range of the arroyo toad could be divided by recovery units or by occurrences in the United States and occurrences in Mexico, we conclude that all occurrences are experiencing similar levels of threats. As discussed above, although the specific threats affecting the species may be different at individual sites or in different parts of the arroyo toad's range, on the whole threats are occurring throughout the species' range. While the types of threats affecting arroyo toads differ among occurrences, all are experiencing a similar level or intensity of threat and no portion is experiencing a greater level of risk than other portions; see the Geographic Breakdown of Threats section of the Species Report for more detail on threats in each Recovery Unit (Service 2013, pp. 86-88). In no portions of its range are threats significantly concentrated or substantially greater than in other portions of its range. Therefore, no portion of the arroyo toad's range warrants further consideration.

Conclusion

Based on the analyses above, we conclude that the arroyo toad is no longer in danger of extinction throughout all or a significant portion of its range, but instead is likely to become endangered in the foreseeable future throughout all or a significant portion of its range. While no populations of the arroyo toad are at imminent risk of extirpation, ongoing threats continue to affect the likelihood of long-term persistence of the populations and the species such that the arroyo toad more appropriately meets the definition of a threatened species under the Act. Therefore, we find that the petitioned action is warranted, and we propose to reclassify the arroyo toad from an endangered species to a threatened species.

Effects of This Rule

If this proposed rule is made final, it would revise 50 CFR 17.11(h) to reclassify the arroyo toad from endangered to threatened on the List of Endangered and Threatened Wildlife. However, this reclassification does not significantly change the protections afforded this species under the Act. The statutory and regulatory protections provided pursuant to sections 9 and 7 of the Act remain in place. Anyone taking, attempting to take, or otherwise possessing an arroyo toad, or parts thereof, in violation of section 9 of the Act is subject to a penalty under section 11 of the Act, unless their action is covered under a special rule under section 4(d) of the Act. However, no 4(d) rules are proposed for the arroyo toad. Pursuant to section 7 of the Act, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of the arroyo toad. This rule would not affect the critical habitat designation for the arroyo toad at 50 CFR 17.95(d).

Recovery actions directed at the arroyo toad will continue to be implemented as outlined in the Recovery Plan for this species (Service 1999, entire).

Required DeterminationsClarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the names of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act

We determined we do not need to prepare an Environmental Assessment or an Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited in this proposed rule is available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2014-0007 or upon request from the Field Supervisor, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

Author

The primary author of this proposed rule is the Pacific Southwest Regional Office in Sacramento, California, in coordination with the Ventura Fish and Wildlife Office in Ventura, California (see FOR FURTHER INFORMATION CONTACT).

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), OIRA_Submission@OMB.EOP.GOV or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8958.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

Food Safety and Inspection Service

Title: Specified Risk Materials.

OMB Control Number: 0583-0129.

Summary of Collection: The Food Safety and Inspection Service (FSIS) has been delegated the authority to exercise the functions of the Secretary as provided in the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq.) This statute mandate that FSIS protect the public by ensuring that meat products are safe, wholesome, not adulterated, and properly labeled and packaged. FSIS requires that official establishments that slaughter cattle and or process carcasses or parts of cattle develop written procedures for the removal, segregation, and disposition of specified risk materials (SRMs). Establishments are also required by FSIS to maintain daily records sufficient to document the implementation and monitoring of their procedures for the removal, segregation, and disposition of SRMs, and any corrective actions taken to ensure that such procedures are effective.

Need and Use of the Information: FSIS will collect information from establishments to ensure meat and meat products distributed in commerce for use as human food do not contain SMRs.

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments regarding this information collection received by April 28, 2014 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: OIRA_Submission@OMB.EOP.GOV or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

Animal Plant & Health Inspection Service

Title: Swine Health Protection.

OMB Control Number: 0579-0137.

Summary of Collection: Under the Animal Health Protection Act (7 U.S.C. 8301 et seq.) the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture is authorized, among other things to prohibit or restrict the interstate movement of animals and animal products to prevent the dissemination within the United States of animal diseases and pests of livestock and to conduct programs to detect, control and eradicate pests and diseases of livestock. The regulations in 9 CFR parts 71 and 85 facilitate the pseudorabies (PRV) eradication program and general swine health by providing requirements for moving swine interstate within a production system. (A production system consists of separate farms that each specialize in a different phase of swine production such as sow herds, nursery herds, and finishing herds. These separate farms, all members of the same production system, may be located in more than one State.) APHIS will collect information using several APHIS forms.

Need and Use of the Information: APHIS will collect information on the number of swine being moved in a particular shipment, the shipment's point of origin, the shipment's destination, and the reason for the interstate movement. The documents used to gather the necessary information include: (1) The Permit of Move Restricted Animals (VS Form 1-27); (2) the certificate of veterinary inspection; (3) an owner-shipper statement; (4) the accredited veterinarian's statement concerning embryos for implantation and semen shipments; (5) a swine production system health plan; (6) an interstate movement report and notification; and (7) the completion and recordkeeping of a Quarterly Report of Pseudorabies Control Eradication Activities (VS Form 7-1). The documents provide APHIS with critical information concerning a shipment's history, which in turn enables APHIS to engage in swift, successful trackback investigation when infected swine are discovered. PRV is further controlled through depopulation and indemnity using an Appraisal and Indemnity Claim Form (VS Form 1-23), herd management plan, movement permit and report of net salvage proceeds.

Description of Respondents: Business or other for-profit; State, Local or Tribal Government.

Number of Respondents: 5,120.

Frequency of Responses: Recordkeeping; Reporting: On occasion.

Total Burden Hours: 35,696.

Animal and Plant Health Inspection Service

Title: Importation of Horses, Ruminants, Swine, and Dogs; Inspection and Treatment for Screwworm.

OMB Control Number: 0579-0165.

Summary of Collection: The Animal Health Protection Act (AHPA) of 2002 is the primary Federal law governing the protection of animal health. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pest or diseases of livestock or poultry. The regulations under which the Animal and Plant Health Inspection Service (APHIS) conduct disease prevention activities are contained in Title 9, Chapter 1, Subchapter D, Parts 91 through 99. These regulations govern the importation of animals, birds and poultry, certain animal and poultry products, and animal germplasm. APHIS regulations ensure that horses, ruminants, swine, and dogs imported into the United States from regions of the world where screwworm is known to exist to be inspected and, if necessary, treated for infestation with screwworm.

Screwworm is a pest native to tropical areas of South America, the Indian subcontinent, Southeast Asia, tropical and sub-Saharan Africa, and the Arabian Peninsula that causes extensive damage to livestock and other warm-blooded animals.

Need and Use of the Information: APHIS requires the following documents to import horses, ruminants, swine, and dogs from regions where screwworm is known to exist: (1) An application for import or in-transit permit (VS 17-129); and (2) the health certificate. For the Application of Import the importer must describe the type, number, and identification of the animals or products to be exported. The origin, intended date and location of arrival, routes of travel, and destination of the animals or products must be listed on the application. The permit can only be used for the animals listed on the application. Horses, ruminants, swine, and dogs entering the United States from regions where screwworm is known to exist must be accompanied by a certificate, signed by a full-time salaried veterinary official of the exporting country, stating that these animals have been thoroughly examined, that they have been treated with ivermectin, that any visible wounds have been treated with coumaphos, and the animals appear to be free of screwworm.

Description of Respondents: Business or other for-profit; Federal Government.

Food and Nutrition Service (FNS), United States Department of Agriculture (USDA).

ACTION:

Notice and request for comments.

SUMMARY:

In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the proposed information collection. This is a new information collection for the Evaluation of the Pilot Project for Canned, Frozen, or Dried Fruits and Vegetables in the Fresh Fruit and Vegetable Program (FFVP).

DATES:

Written comments on this notice must be received by May 27, 2014.

ADDRESSES:

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of Agency functions, including whether the information shall have practical utility; (b) the accuracy of the Agency's estimated burden of the proposed information collection, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including use of appropriate automated, electronic, mechanical, or other technological methods of data collection.

Written comments may be sent to: Richard Lucas, Acting Director, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Richard Lucas at 703-305-2576 or via email to richard.lucas@fns.usda.gov. Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically.

All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

FOR FURTHER INFORMATION CONTACT:

To request more information on the proposed project or to obtain a copy of the data collection plans, contact Allison Magness, Ph.D., R.D. Social Science Research Analyst, Special Nutrition Evaluation Branch, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Allison Magness at 703-305-2576 or via email to allison.magness@fns.usda.gov.

SUPPLEMENTARY INFORMATION:

Title: Evaluation of the Pilot Project for Canned, Frozen, or Dried Fruits and Vegetables in the Fresh Fruit and Vegetable Program (FFVP).

Form Number: N/A.

OMB Number: 0584NEW.

Expiration Date: Not yet determined.

Type of Request: New collection.

Abstract: The Fresh Fruit and Vegetable Program (FFVP) is intended to improve overall diet quality by teaching children more healthful eating habits. The FFVP began as a pilot project in four states pursuant to provisions of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171). Schools selected to participate in the FFVP are reimbursed for providing free fresh fruits and vegetables to students during the school day, outside of normal school breakfast and lunch meals. Under Section 4304 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246), the Richard B. Russell National School Lunch Act (NSLA) was amended to authorize the expansion of the FFVP to selected schools nationwide, including Guam, Puerto Rico, and the Virgin Islands. This was accomplished by incorporating the FFVP into its own section in the NSLA, Section 19, 42 U.S.C. 1770. The Agricultural Act of 2014, Section 4214, instructed the Secretary of Agriculture to carry out a pilot project in schools participating in FFVP in a minimum of five States to evaluate the impact of allowing schools to offer canned, frozen, or dried fruits and vegetables as part of FFVP for School Year 2014-2015. As part of the authorizing legislation, the Secretary was tasked in Section 4214(c) with conducting an evaluation of the pilot. The legislation states:

“1. The impacts on fruit and vegetable consumption at the schools participating in the pilot project;

2. The impacts of the pilot project on school participation in the Program and operation of the Program;

3. The implementation strategies used by the schools participating in the pilot project;

4. The acceptance of the pilot project by key stakeholders; and

5. Such other outcomes as are determined by the Secretary.”

The evaluation of the pilot project has two main objectives: (1) To examine how the pilot project is implemented, and (2) to estimate program impacts on participating students. To address these objectives, FNS has specified the following research categories for the evaluation:

1. Description of participating schools.

2. Description of participating children.

3. Description of the pilot project implementation.

4. Examine impacts of the pilot project on school environment.

5. Examine program impacts on children including consumption of different types of fruits and vegetables, consumption of other foods, nutritional status and attitudes towards fresh fruits and vegetables.

To evaluate program impacts on participating students, data will be collected from approximately 6,144 students in grades 4-6 in 100 public elementary schools in 5 States as well as parents, teachers, school food service managers and principals.

Affected Public: State, Local and Tribal Agency, individuals and households.

Type of Respondents: State Child Nutrition (CN) Directors, Directors of School Food Authorities (SFAs), School Principals, School food service managers, Teachers, Students (grades 4, 5 and 6), and Parents of sampled students.

Estimated Total Number of Respondents: 17,510.

Frequency of Response: State CN Directors will be asked to participate in two web surveys. State CN Directors in the impact sample will be asked to pull administrative twice. SFA Directors and Principals will each participate in one web survey. School food service managers will be interviewed in person two times on sample days for information about foods served in the pilot project and school meals (School Breakfast Program and National School Lunch Program) on those days. Teachers and parents of sampled students will each complete one short questionnaire. Sampled students will all participate in an individual dietary recall which may be assisted by a one-day food diary. A subsample of the students will complete a second dietary recall on a nonconsecutive day, which may be assisted by a one-day food diary.

Estimated Annual Responses: 17,754.

Estimate of Time per Respondent and Annual Burden: About 30 minutes (0.48 hours). The estimated time of response varies from 3 to 65 minutes depending on respondent group, as shown in table below. The total annual burden is 7,933.7 hours.

In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collections. The proposed collection is a revision of a currently approved collection for the Supplemental Nutrition Assistance Program and the Food Distribution Program.

DATES:

Written comments must be received on or before May 27, 2014.

ADDRESSES:

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments regarding form FNS-292A may be sent to Dana Rasmussen, Chief, Policy Branch, Food Distribution Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 506, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Mr. Rasmussen at (703) 305-2964 or via email to Dana.Rasmussen@fns.usda.gov.

Comments regarding form FNS-292B may be sent to Angela Kline, Chief, Certification Policy Branch, Program Development Division, Supplemental Nutrition Assistance Program, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 812, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Ms. Kline at (703) 305-2896 or via email to Angela.Kline@fns.usda.gov.

Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically. All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 812 and Room 506. All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will be a matter of public record.

FOR FURTHER INFORMATION CONTACT:

Requests for additional information or copies of this information collection should be directed to Angela Kline, (703) 305-2495 or to Dana Rasmussen, (703) 305-1628.

Abstract: The Food and Nutrition Service (FNS) utilizes forms FNS-292A and FNS-292B to collect information not otherwise available on the extent of FNS-funded disaster relief operations. Form FNS-292A is used by State distributing agencies to provide a summary report to FNS following termination of disaster commodity assistance and to request replacement of donated foods distributed during the disaster or situation of distress. Form FNS-292B is used by State departments of social services to report to FNS the number of households and persons certified for Disaster Supplemental Nutrition Assistance Program (D-SNAP) benefits as well as the value of benefits issued.

Donated food distribution in disaster situations is authorized under Section 32 of the Act of August 24, 1935 (7 U.S.C. 612c); Section 416 of the Agricultural Act of 1949 (7 U.S.C. 1431); Section 709 of the Food and Agriculture Act of 1965 (7 U.S.C. 1446a-1); Section 4(a) of the Agriculture and Consumer Protection Act of 1973 (7 U.S.C. 612c note); and by Sections 412 and 413 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5179, 5180). Program implementing regulations are contained in Part 250 of Title 7 of the Code of Federal Regulations (CFR). In accordance with 7 CFR 250.69(f), distributing agencies shall provide a summary report to the FNS within 45 days following termination of the disaster assistance.

Disaster assistance through SNAP is authorized by Sections 402 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) and the temporary emergency provisions contained in Section 5 of the Food and Nutrition Act of 2008, and in 7 CFR Part 280 of the SNAP regulations. In accordance with 7 CFR 274.4, State agencies shall keep records and report SNAP participation and issuance totals to FNS.

Estimated Total Annual Responses: 220. Due to calculation errors, the total annual responses increased from 110 to 220 since the last submission. This increase is due to adjustments for recordkeeping responses.

Estimated Time per Response: Public reporting burden for this collection of information is estimated to average 25 minutes (0.4175 hours) per form (FNS-292A and FNS-292B) per respondent (total of 50 minutes (.84 hours) per respondent). Recordkeeping burden for the State agencies is estimated to be 5 minutes (.084 hours) per form (FNS-292A and FNS-292B) per respondent (total of 10 minutes (.167 hours) per respondent).

Estimated Total Annual Burden: 3,300 minutes (55 hours), including a total reporting burden of 2,750 minutes (46 hours) and a total recordkeeping burden of 550 minutes (9 hours).

Combined Reporting and Recordkeeping Burden Affected public Instrument Estimated number of

The Broadcasting Board of Governors (BBG), as part of its continuing effort to reduce paperwork and respondent burden, invites public comment on an information collection titled, “Surveys and Other Audience Research for Radio and TV Marti.” This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 [Pub. L. 104-13; 44 U.S.C. 3506(c)(2)(A)].

The information collection activity involved with this program is conducted pursuant to the mandate given to the BBG to provide for the broadcasting of accurate information to the people of Cuba, and other purposes, under Public Law 98-111, the Radio Broadcasting to Cuba Act, dated, October 4, 1983, and Public Law 101-246, dated, February 16, 1990.

Copies: Copies of the Request for Clearance, supporting statement, and other documents that will be submitted to OMB for approval may be obtained from the Chief of the Office of Administration for BBG.

SUPPLEMENTARY INFORMATION:

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The Federal Register Notice with a 60-day comment period soliciting comments on this collection of information was published in the Federal Register, 79 FR 3777, on January 23, 2014.

Annual estimated burden for this proposed collection of information is estimated to average 3 hours per response for 96 Focus Group Studies respondents, 3 hours per response for 30 Audience Panels respondents, and 15 minutes (0.25 of an hour) per response for 300 Structured Surveys respondents, including average estimated time for travel to and from the facility where research activities are conducted. Respondents will be required to respond only one time for Focus Group Studies and Structured Surveys, but three 3 times for Audience Panels. Comments are requested on the proposed information collection concerning:

(a) Whether the proposed collection of information is necessary for the proper performance of the agency's functions, including whether the information collection has practical utility;

(b) the accuracy of the Agency's burden estimates;

(c) ways to enhance the quality, utility, and clarity of the information collected; and

(d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

Current Actions: BBG is requesting reinstatement of this collection for a three-year period and approval for a revision to the burden hours.

Title: Surveys and Other Audience Research for Radio and TV Marti.

Abstract: Data from this information collection are used by BBG's Office of Cuba Broadcasting (OCB) in fulfillment of its mandate to evaluate effectiveness of Radio and TV Marti operations by estimating the audience size and composition for broadcasts. This information collection is also used to assess signal reception, credibility, and relevance of programming.

TDD: Dial Federal Relay Service 1-800-977-8339 give operator the following number: 202-376-7533—or by email at ero@usccr.gov.

Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the New Hampshire Advisory Committee to the Commission will convene via conference call. The purpose of the meeting is project planning to discuss potential speakers for briefings on human trafficking and voting rights. The Advisory Committee will also review a summary report on the roundtable briefing meeting held on September 30, 2013 in which the Advisory Committee heard from advocates, experts, and government officials on human trafficking, racial profiling, voting rights, and mental health issues in New Hampshire.

The meeting will be conducted via conference call. Members of the public, including persons with hearing impairments, who wish to listen to the conference call should contact the Eastern Regional Office (ERO), ten days in advance of the scheduled meeting, so that a sufficient number of lines may be reserved. You may contact the Eastern Regional Office by phone at 202-376-7533. Persons with hearing impairments would first call the Eastern Regional Office at the number listed above. Those contacting ERO will be given instructions on how to listen to the conference call.

Members of the public who call-in can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number.

Members of the public are entitled to submit written comments. The comments must be received in the regional office by Monday, May 12, 2014. Comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Melanie Reingardt at ero@usccr.gov. Persons who desire additional information may contact the Eastern Regional Office at 202-376-7533.

Records generated from this meeting may be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

The meetings will be conducted pursuant to the provisions of the rules and regulations of the Commission and FACA.

An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the City of Leesburg to establish a foreign-trade zone within Lake County, Florida, adjacent to the Leesburg Customs and Border Protection (CBP) user fee airport, under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new “subzones” or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone project. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on March 21, 2014. The applicant is authorized to make the proposal under Florida Statutes, Title XIX, Chapter 288, Part III.

The applicant's proposed service area under the ASF would be Lake County, Florida. If approved, the applicant would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Leesburg CBP user fee airport.

The proposed zone would include two “magnet” sites: Proposed Site 1 (818 acres)—Leesburg International Airport, 8807 Airport Boulevard, Leesburg; and, Proposed Site 2 (662 acres)—Leesburg Industrial and Technology Park, located north of County Road 48, east of the Florida Turnpike, and north and south of County Road 470, Leesburg. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 1 be so exempted.

The application indicates a need for zone services in the Lake County, Florida, area. Several firms have indicated an interest in using zone procedures for warehousing/distribution activities for a variety of products. Specific production approvals are not being sought at this time. Such requests would be made to the FTZ Board on a case-by-case basis.

In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.

Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is May 27, 2014. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 10, 2014.

A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz. For further information, contact Camille Evans at Camille.Evans@trade.gov or at (202) 482-2350.

An application has been submitted to the Foreign-Trade Zones Board (the Board) by ASO, LLC (ASO), operator of Subzone 169A, for its facility located in Sarasota, Florida. The facility is used for the production of plastic and textile fabric adhesive bandages. ASO's request would add certain foreign-status textile products to ASO's existing scope of authority.

On March 14, 2014, ASO made a submission to the FTZ Board that included new evidence in response to the examiner's preliminary recommendation not to approve the requested expansion of FTZ production authority. Public comment is invited on ASO's new submission through April 28, 2014. Rebuttal comments may be submitted during the subsequent 15-day period, until May 12, 2014. Submissions shall be addressed to the FTZ Board's Executive Secretary at: Foreign-Trade Zones Board, U.S. Department of Commerce, Room 21013, 1401 Constitution Ave. NW., Washington, DC 20230.

A copy of ASO's March 14, 2014, submission will be available for public inspection at the address above, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

On November 19, 2013, the Piedmont Triad Partnership, grantee of FTZ 230, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Sonoco Display and Packaging, in Rural Hall and Winston-Salem, North Carolina.

The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (78 FR 73824, 12-9-2013). The FTZ Board has determined that no further review of the activity is warranted at this time. The production activity described in the notification is authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14, and further subject to a restriction requiring that all foreign bags, handbags, clutches, and cases of textile materials (classified within HTSUS4202.12.4000, 4202.12.6000, 4202.12.8020, 4202.12.8030, 4202.12.8040, 4202.12.8060, 4202.12.8070, 4202.12.8080, 4202.22.4020, 4202.22.4030, 4202.22.4040, 4202.22.4500, 4202.22.6000, 4202.22.8030, 4202.22.8050, 4202.22.8080, 4202.32.4000, 4202.32.8000, 4202.32.9530, 4202.32.9550, 4202.32.9560, 4202.92.0805, 4202.92.0807, 4202.92.0809, 4202.92.1500, 4202.92.2000, 4202.92.3016, 4202.92.3020, 4202.92.3031, 4202.92.3091, 4202.92.6091, 4202.92.9026, and 4202.92.9036) used in the production activity must be admitted to the zone in privileged foreign status (19 CFR 146.41) or domestic (duty-paid) status (19 CFR 146.43).

On November 21, 2013, the Virginia Port Airport Authority, grantee of FTZ 20, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Grandwatt Electric Corporation in Suffolk, Virginia.

The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (78 FR 72861-72862, 12-4-2013). The FTZ Board has determined that no further review of the activity is warranted at this time. The production activity described in the notification is authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14.

On January 14, 2014, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the City of Mesa, grantee of FTZ 221, requesting subzone status subject to the existing activation limit of FTZ 221, on behalf of Apple Inc./GT Advanced Technologies Inc., in Mesa, Arizona.

The application was processed in accordance with the FTZ Act and Regulations, including notice in the Federal Register inviting public comment (79 FR 3778, 01/23/2014). The FTZ staff examiner reviewed the application and determined that it meets the criteria for approval. Pursuant to the authority delegated to the FTZ Board Executive Secretary (15 CFR 400.36(f)), the application to establish Subzone 221A is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and further subject to FTZ 221's pre-existing activation limit.

As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (the ITC) that revocation of the countervailing duty (CVD) order on laminated woven sacks from the People's Republic of China (PRC) would likely lead to a continuation or recurrence of net countervailable subsidies and material injury to an industry in the United States, the Department is publishing a notice of continuation of the CVD order.

On July 1, 2013, the Department initiated a sunset review of the order, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act) 1 and 19 CFR 351.218(c). As a result of its review, the Department determined that revocation of the order on laminated woven sacks from the PRC would likely lead to a continuation or recurrence of net countervailable subsidies and, therefore, notified the ITC of the magnitude of the margins likely to prevail should the order be revoked.2 On March 18, 2014, the ITC published its determination pursuant to section 751(c) of the Act that revocation of the CVD order on laminated woven sacks from the PRC would lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.3

The merchandise covered by this order is laminated woven sacks. Laminated woven sacks are bags or sacks consisting of one or more plies of fabric consisting of woven polypropylene strip and/or woven polyethylene strip, regardless of the width of the strip; with or without an extrusion coating of polypropylene and/or polyethylene on one or both sides of the fabric; laminated by any method either to an exterior ply of plastic film such as biaxially-oriented polypropylene (BOPP) or to an exterior ply of paper that is suitable for high quality print graphics; “Paper suitable for high quality print graphics,” as used herein, means paper having an ISO brightness of 82 or higher and a Sheffield Smoothness of 250 or less. Coated free sheet is an example of a paper suitable for high quality print graphics printed with three colors or more in register; with or without lining; whether or not closed on one end; whether or not in roll form (including sheets, lay-flat tubing, and sleeves); with or without handles; with or without special closing features; not exceeding one kilogram in weight. Laminated woven sacks are typically used for retail packaging of consumer goods such as pet foods and bird seed.

Effective July 1, 2007, laminated woven sacks are classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 6305.33.0050 and 6305.33.0080. Laminated woven sacks were previously classifiable under HTSUS subheading 6305.33.0020. If entered with plastic coating on both sides of the fabric consisting of woven polypropylene strip and/or woven polyethylene strip, laminated woven sacks may be classifiable under HTSUS subheadings 3923.21.0080, 3923.21.0095, and 3923.29.0000. If entered not closed on one end or in roll form (including sheets, lay-flat tubing, and sleeves), laminated woven sacks may be classifiable under other HTSUS subheadings including 3917.39.0050, 3921.90.1100, 3921.90.1500, and 5903.90.2500.

If the polypropylene strips and/or polyethylene strips making up the fabric measure more than 5 millimeters in width, laminated woven sacks may be classifiable under other HTSUS subheadings including 4601.99.0500, 4601.99.9000, and 4602.90.000. Although HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.

Continuation of the Order

As a result of the determinations by the Department and the ITC that revocation of the CVD order would likely lead to a continuation or recurrence of net countervailable subsidies and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the CVD duty order on laminated woven sacks from the PRC. U.S. Customs and Border Protection will continue to collect countervailing duty cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of the order will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act and 19 CFR 351.218(c)(2), the Department intends to initiate the next five-year review of the order not later than 30 days prior to the fifth anniversary of the effective date of the continuation.

The five-year sunset review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; receipt of application.

SUMMARY:

Notice is hereby given that the Alaska SeaLife Center (ASLC; Responsible Party, Tara Jones, Ph.D.) 301 Railway Avenue, P.O. Box 1329, Seward, AK 99664, has applied in due form for a permit to conduct research on captive Steller sea lions (Eumetopias jubatus) of the Eastern stock.

DATES:

Written, telefaxed, or email comments must be received on or before April 28, 2014.

ADDRESSES:

The application and related documents are available for review by selecting “Records Open for Public Comment” from the Features box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 18534 from the list of available applications.

These documents are also available upon written request or by appointment in the following office:

Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to NMFS.Pr1Comments@noaa.gov. Please include File No. 18534 in the subject line of the email comment.

Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

FOR FURTHER INFORMATION CONTACT:

Amy Sloan or Jennifer Skidmore, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), and the regulations governing the taking and importing of marine mammals (50 CFR part 216).

The ASLC requests a five-year permit to investigate reproductive physiology of captive adult Steller sea lions and survival, growth, and physiology of captive-bred offspring. The ASLC also proposes to deploy instruments to develop and validate methods for monitoring wild Steller sea lions. Research would be conducted on two adult males, up to six adult females, one pup and up to nine additional offspring (up to 18 research animals total), and would include the following activities: mass and morphometric measurements; ultrasound; sedation, and anesthesia; blood sampling and administration of Evan's blue dye and deuterium oxide; feces, urine, saliva, semen, and milk collection; video/audio recordings; swabs; radiographs; dietary supplements; blubber biopsy; and attachment and proximity to instrumentation. ASLC also requests authorization to transfer to and import from approved facilities up to six Steller sea lions from the Eastern Stock. ASLC requests up to four research-related mortalities over the course of the permit and one naturally caused mortality for each animal. No research would occur on wild populations or affect non- target species.

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce; Fish and Wildlife Service and Bureau of Reclamation, Interior.

ACTION:

Notice of availability; extension of comment period.

SUMMARY:

The National Marine Fisheries Service, Bureau of Reclamation, and the Fish and Wildlife Service are extending the comment period on the Draft Bay Delta Conservation Plan and Natural Community Conservation Plan (BDCP, or the Plan) and Draft BDCP Environmental Impact Report/Environmental Impact Statement (EIR/EIS). In response to public requests, the comment period is being extended for an additional 60 days.

DATES:

Comments on the Draft BDCP and Draft EIR/EIS must be received or postmarked by 5 p.m. Pacific Time on June 13, 2014.

ADDRESSES:

To view or download the Draft BDCP and Draft EIR/EIS, or for a list of locations to view hardbound copies, go to www.baydeltaconservationplan.com.

The comment period is being extended for the jointly issued Draft Bay Delta Conservation Plan (BDCP) and Natural Community Conservation Plan and Draft BDCP Environmental Impact Report/Environmental Impact Statement (EIR/EIS). On December 13, 2013, a 120-day public comment period was opened through notification in the Federal Register (78 FR 75939). In response to requests from the public, the comment period is being extended for an additional 60 days. The comment period will now officially close on June 13, 2014, at 5 p.m. Pacific Time. A draft Implementing Agreement is still under preparation and will be made available to the public for review and comment in mid 2014. It will be posted at www.baydeltaconservationplan.com as soon as it is available.

Submitting comments to the email and hard-copy addresses identified in the ADDRESSES section of this notice will constitute effective filing of the California Environmental Quality Act comments on the EIR portion of the EIR/EIS. The National Marine Fisheries Service, Bureau of Reclamation, and the Fish and Wildlife Service are furnishing this notice to allow other agencies and the public an extended opportunity to review and comment on these documents. All comments received will become part of the public record for this action.

Public Disclosure

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—inc